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Watch Out: Workplace Smells, ADA Disability, Telecommuting, and an EEOC Lawsuit

Seyfarth Synopsis: According to the EEOC in this just filed lawsuit, a home care services provider in North Carolina violated federal disability rights law when it rejected telecommuting requests from an employee whose asthma and COPD “made her sensitive to workplace smells.” 

Earlier this month, the Equal Employment Opportunity Commission iled suit against a home healthcare company to “correct unlawful employment practices on the basis of disability.” In the complaint, filed in EEOC v. Advanced Home Care, Inc., No. 1:17-cv-00646 (M.D.N.C. July 12, 2017), the EEOC alleges that Advanced Home Care, Inc. refused to provide Elizabeth Pennell, a “qualified individual with a disability,” with a reasonable accommodation, and discharged her in violation of the Americans with Disabilities Act.

According to the EEOC, Pennell was a case manager for patients requiring home services. As a case manager, Pennell was required to spend part of her day on telephone calls. In 2015, Pennell began to experience frequent asthma attacks and flare-ups of bronchitis. After collapsing at work after a heavy bout of coughing, she was hospitalized where she was diagnosed with chronic bronchitis and COPD.

The complaint alleges that as a “consequence of asthma, bronchitis, and COPD, Pennell experiences wheezing, severe bouts of coughing, and asthma attacks,” and that Pennell’s physical impairments “substantially limit her in the major life activity of breathing. . . and constitute a disability under the ADA.” The EEOC alleges that scents and odors aggravate Pennell’s COPD and asthma, that she worked in a cubicle in close proximity to hundreds of other employees, and that she was therefore subjected to these types of irritants, including the smell of smoke on other employees’ clothes.

The EEOC claims that Pennell’s supervisor “ignored Pennell’s repeated requests to telework” and that teleworking would have allowed Pennell to be away from actual and potential respiratory irritants. The EEOC also claims that Pennell’s supervisor told her she would terminated if she could not return to work without restrictions. The complaint alleges that Pennell could have performed the essential functions of her position with the reasonable accommodation of telework. The EEOC also claims that as a consequence of Pennell’s disability, she had difficulty talking continuously for extended periods of time, and if she had been allowed to telework, she would not have been required to take inbound calls and therefore would have spent less time on the phone.

Employers should note that this scenario is somewhat unusual but that telecommuting has been an issue on the EEOC’s radar for the last several months (i.e., is working from home a reasonable accommodation?). Right how we only have the EEOC’s allegations and no response from the employer. (We’ll be keeping an eye on this litigation to see how it plays out.) However, the critical take away (regardless of how the employer responded) is the proper handling and response to employee accommodation requests. Company policies and procedures as well as internal manager training systems for these sorts of requests and responses should be well set out and diligently followed.

Contact Us At: arcor-inc.com SD: 858-481-4494 LA: 310-431-9389 North California: 650-468-0307

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