The California courts make it clear that it is illegal to deny reasonable accommodations to a disable employee because of his disciplinary record related to that disability. In Humphrey v Memorial Hosps. Ass’n (2001), a medical transcriptionist with obsessive compulsive disorder (OCD) was consistently late to work because of ritualistic grooming behaviors in the morning. The employer denied her a request for accommodation with a work-from-home arrangement, relying on its policy of not allowing such arrangements for employees with a disciplinary record. The court explained in that case that it would be inconsistent with the purposes of ADA laws to permit an employer to deny an otherwise reasonable accommodation because of past disciplinary action taken due to the disability sought to be accommodated.
Similarly, in EEOC v Ford Motor Company (2014), the court rejected the employer’s argument that they could deny a telecommuting accommodation because of the claimant’s past attendance issues, since those attendance issues were caused by the claimant’s IBS (irritable bowel syndrome) which is also considered a disability under both ADA and FEHA. More significantly, this case is a landmark decision in a sense that it notes that telecommuting can be a reasonable accommodation, especially in light of the modern times when technology provides more and more options for employees to perform their work tasks remotely and for the employer to operate just as effectively when their workers perform many of their job duties remotely.
Interestingly, the court was not impressed with one of the alternative accommodations proposed to the claimant in that case, where they would move her office closer to the restroom. Because the claimant’s condition was so severe and uncontrollable that she could soil herself by merely standing up, moving her closer to the restroom and subjecting her to the humiliation of having her co-workers witness how she was wetting herself, the court noted, was not a reasonable accommodation.
In light of the above decisions and the court’s analysis of the circumstances in each case, an employee who requests an who is denied 100% telecommuting arrangement, should request a partial telecommute, i.e. 2 or 3 days per week, or telecommute on per-need basis, due to the medical condition at issue.