The ADA and Reasonable Accommodation: Does it Include Working At Home?
by Stacey Cerrone & Robert Rachal
May 7, 2001
Reprinted with permission
Copyright ©2001MaCalla Thompson
On April 26, 2001, a divided U.S. Eighth Circuit held that "reasonable accommodation" did not include allowing a disabled employee to work from home when the employer was unable to provide the necessary software and equipment to allow the employee to perform the essential functions of the job. Heaser v. The Toro Company, et al., 2001 WL 422587 (8th Cir. 2001). Although the court ultimately ruled for the employer in this instance, this case illustrates that - at least from a technological perspective - technology is rapidly making telecommuting from home a possible option in the reasonable accommodation process. In response, employers are going to need to consider the following issues:
1. Whether or not telecommuting makes sense from their business perspective, work culture, and needs; and
2. If not, employers will need to build the record on the personal interaction, industrial psychology, and other reasons why they need their employees to be at the workplace.
Plaintiff, Lynn Heaser, was employed as an administrative assistant at one of Defendant Toro's facilities in 1990. In 1993 she was promoted to marketing services coordinator. As part of her new job, Heaser took orders by phone and in person, processed the information on carbonless paper forms and by computer, maintained historical files and created literature racks. In 1991, Heaser developed health problems she suspected were a result of her work environment at Toro and informed her employers.
In 1996, Heaser told her supervisor that because of her illnesses she was having trouble remaining at work throughout the day. Although not a policy at Toro, Toro allowed her to temporarily work at home. Heaser worked at home for three months. She had no performance deficiencies during this time but admitted that she was not fully performing her job. Upon her return, Toro attempted to accommodate Heaser by moving her to a different facility. This did not alleviate her symptoms and she took four months of short-term disability.
After returning from short-term disability, Heaser again requested she be allowed to work from home. Toro denied her request because it felt she could not perform the essential functions of her position at home. Toro instead offered to again move her to another location. Heaser responded that a change in location alone would not accommodate her needs but she might be able to come back to work if Toro removed the air-fresheners, used non-toxic cleaning solutions, and provided her with an air purifier. However, she communicated she was still concerned with the carbonless paper Toro used. Toro indicated that it would take steps to improve the air quality and accommodate her, but were still concerned that she would not be able to do her job. Toro asked Heaser for a release from her doctor. Heaser's doctor wrote a letter to Toro stating that unless Heaser could avoid plastics, carbonless paper, copiers and their fumes, exhaust fumes, perfumes and colognes, it would be very difficult to continue her employment. Toro felt that Heaser could no longer perform the essential functions of her job and terminated her.
The Suit and the ADA Issues:
Heaser filed suit alleging disability discrimination. The district court granted summary judgment in favor of Toro. Heaser appealed to the Eighth Circuit, arguing Toro failed to reasonably accommodate her by not allowing her to work at home. Toro argued that allowing Heaser to work at home was not a reasonable accommodation because it was unable to provide her with the necessary computer technology that would enable her to perform the essential functions of her job. Because Toro was unable to provide the necessary computer equipment, it would have to reallocate the essential functions of Heaser's job to allow her to work at home. A majority of the Eighth Circuit ultimately agreed Heaser's request was not reasonable.
The Court's Analysis:
The Eighth Circuit determined that to make out a prima facie case Heaser had to show: that she was disabled under the ADA; that she was qualified to perform the essential functions of the job, with or without reasonable accommodation; and that she suffered an adverse employment action because of her disability. The only question presented here was whether Heaser showed she was a "qualified individual" under the ADA - i.e., could she perform the essential functions of her job with reasonable accommodation? Essential functions could be established by evidence that included: employer's judgment as to what are essential functions; written job descriptions; amount of time spent performing the function; consequences of not requiring the individual to perform the function; and current work experience of individuals in similar jobs.
The Eighth Circuit then looked at whether allowing Heaser to work at home was a reasonable accommodation. Heaser contended that given the current technology, working from her home was a reasonable accommodation. She argued that she could do all of the essential functions of her job at home with the proper computer technology. She also asserted that Toro could have computerized their entire order system so she would not have to work with carbonless paper. In contrast, Toro submitted evidence from an expert in its information technology division, who stated that the computer software used in Heaser's position could not have been used through remote access to Toro's computer systems and that there were no present plans to computerize Toro's order system. Toro argued that to make the accommodations that Heaser required would be to completely change the way it did business. The majority of the Eight Circuit agreed with Toro's analysis. The Eighth Circuit followed prior precedent from its circuit and other circuits and held that Toro was not required to completely change its manner of conducting business to accommodate Heaser.
The dissent claimed the "reasonable accommodation" issue should have been left to a jury to decide. According to the dissent, Heaser's evidence that she had worked from home before and that Toro allowed other employees to telecommute militated toward a finding that working from home was a "reasonable accommodation." The dissent also noted that there was no evidentiary showing that (i) the particular software program that could not be remotely accessed was "necessary to" or an "essential function" of Heaser's job or (ii) that Toro could not have gone to electronic forms to place orders. Rather, per the dissent, the particular technologies at issue were merely "tools" used to accomplish the "essential functions" of, e.g., ordering literature and managing the marketing inventory.
In conclusion, although the employer won this particular case, this case aptly illustrates that - at least for some jobs - technology is rapidly negating the technical need for the employee to always be at the work place to perform work. Employers who wish to enforce "at work" rules in the ADA context thus will need to consider building the record on the personal interaction, industrial psychology, and other reasons why they need their employees to be at the workplace. Disclaimer: The materials contained in this e-mail newsletter and linked content on our primary web site have been prepared by McCalla Thompson LLP for informational purposes only. They are not intended as and do not constitute either legal advice or a solicitation of any prospective client. An attorney-client relationship with McCalla Thompson LLP cannot be formed by reading or responding to this information; such a relationship may be formed only by specific and explicit agreement with McCalla Thompson LLP.
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