Ooh That Smell! EEOC Raises Telework Issue for Asthmatic

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By Patrick Dorrian

A home care services provider in North Carolina violated federal disability rights law when it rejected telecommute requests from a call center worker whose asthma and COPD made her sensitive to workplace smells, the EEOC charges in a federal lawsuit ( EEOC v. Advanced Home Care, Inc. , M.D.N.C., No. 1:17-cv-00646, complaint filed 7/12/17 ).

Elizabeth Pennell asked her supervisor at Advanced Home Care Inc.'s High Point, N.C., facility at least three times if she could work from home to avoid the fragrances, scents, and odors she encountered at the facility. Exposure to those smells aggravated her respiratory conditions, the federal job rights watchdog says.

Telework isn’t always a reasonable accommodation under the Americans with Disabilities Act, and employers don’t need to automatically grant such requests. But it has long been the position of the Equal Employment Opportunity Commission that companies must at a minimum consider, be open to, and be flexible about telework arrangements for disabled workers. That’s a point the agency made in announcing the lawsuit, which was filed July 12 in the U.S District Court for the Middle District of North Carolina.

“When a qualified employee with a disability is ready and willing to work, the employer has a legal duty to provide a reasonable accommodation to make that employment possible unless the employer can show undue hardship,” Lynette A. Barnes said. “Employers must be flexible in evaluating requests from their employees for reasonable accommodation,” added Barnes, the regional attorney for the EEOC’s Charlotte, N.C., district office.

Pennell’s supervisor, however, ignored her requests to work from home, the EEOC alleges. Pennell subsequently was hospitalized for symptoms related to her chronic obstructive pulmonary disease, it says.

According to the lawsuit, Pennell served as a case manager for patients requiring home services and could have performed her essential duties from home. Instead she was forced to take medical leave, told multiple times she would be fired if she couldn’t return to work without medical restrictions, and terminated when her federally protected medical-leave allowance ended, the commission says.

“Advanced Home Care currently has no comment” on the case, a company spokesperson told Bloomberg BNA in a July 12 email.

Failure-to-Accommodate Accusations Frequent

Many federal courts have taken the view that physical attendance at a company’s worksite is an essential function of most jobs. But the EEOC’s position--that the reasonableness of a specific worker’s request for a telework accommodation must be analyzed on a case-by-case basis--likewise has found support in the courts.

Failure to accommodate under the ADA is perennially one of the top complaints the EEOC receives. Over its past five fiscal years, the commission has averaged more than 10,000 such charges annually, according to its enforcement statistics.

Pennell’s discharge followed a medical leave she began In November 2015 after she was hospitalized for COPD-related symptom, the EEOC alleges. She remained on medical leave until her termination in January 2016 despite her accommodation requests, it says.

She previously had taken medical leave in August 2015 when she collapsed at work and was hospitalized “after a heavy bout of coughing,” the agency asserts. She began asking if she could work from home part- or full-time when she returned from that leave, the commission says.

The “smell of smoke” on co-workers’ clothing was among the hundreds of irritants she was regularly exposed to in her work cubicle at Advanced Care’s High Point call center, according to the EEOC.

To contact the reporter on this story: Patrick Dorrian in Washington at pdorrian@bna.com

To contact the editors responsible for this story: Peggy Aulino at maulino@bna.com; Terence Hyland at thyland@bna.com; Chris Opfer at copfer@bna.com

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