By Foy Meyer III

For most employers, granting the accommodation requests of disabled employees is often a matter of goodwill and commonsense.  If a request is granted, the employer is able to retain a good employee in exchange for only a minor financial expense or administrative inconvenience.  By contrast, if the request is denied, the employer must deal with the hassle of firing an existing employee (not to mention subjecting itself to the perils of potential claims of disability discrimination), all the while having to interview, hire, and train a suitable replacement.  While the choice between these alternatives is typically an easy one, employees occasionally seek more onerous accommodation requests.  In cases such as these, employers are forced to draw a fine line in distinguishing between accommodation requests that are plainly burdensome and those that are flat out unreasonable.  Such was the case in Mulloy v. Acushnet Co., 460 F.3d 141 (1st Cir. 2006).  

Hired in 1998 as an electrical engineer, Michael Mulloy was required to work at a golf ball manufacturing plant in Fairhaven, Massachusetts.  As part of the manufacturing process, certain chemical sensitizers were used that are known for causing and/or exacerbating respiratory problems such as asthma.  In 2001, Mr. Mulloy developed a condition known as “occupational” asthma, for which he obtained a note from his physician advising that he could no longer work at the plant since his condition would allow him to work “only in a meticulously clean work environment.”  Per this medical determination, Mr. Mulloy asked his employer for permission to “perform his job remotely” from an off-site location.  Mr. Mulloy’s employer promptly denied his request.

Following his employer’s denial of his request, Mr. Mulloy sued on the basis of disability discrimination.  After examining Mr. Mulloy’s job description as well as the actual duties that he performed on a day-to-day basis, the District Court concluded that working and collaborating interactively with the machines and other employees at the golf ball plant was an essential function of Mr. Mulloy’s job.  Because Mr. Mulloy could only perform these functions by physically showing up to work at the plant, the District Court dismissed his discrimination claim on the ground that Mr. Mulloy’s inability to work at the plant rendered him unable to perform the essential functions of his job with or without a reasonable accommodation and, as such, his request to work off-site was per se unreasonable.  In reaching this result, while the District Court expressly recognized that a reasonable accommodation of a disability may call for job restructuring, it aptly noted that the law does not require an employer to accommodate a disability by foregoing an essential function of the position or by reallocating an essential function to make the jobs of other workers more onerous.

Upholding the District Court’s ruling, the First Circuit Court of Appeals began its analysis by remarking that the issue of whether a disabled employee must be permitted to work at a remote location may be considered “as an essential function issue or as a reasonable accommodation issue.”  Rejecting Mr. Mulloy’s claim from both perspectives, the First Circuit echoed the District Court’s holding that “working from a remote location inherently vitiates [an employee]’s ability to perform essential functions” and, thus, does not constitute a reasonable accommodation, but rather a redefinition of the job itself.  “As commonsense suggests,” noted the First Circuit, “it is a given… that [employees] are actually required to show up at the workplace.”

The lesson for Maine employers to glean from Mulloy is that while the Maine Human Rights Commission continues its campaign to qualify more and more of Maine’s workforce as statutorily “disabled” (thereby increasing the number of accommodation requests that will be submitted to employers), it is still the prerogative of Maine employers to require their employees – disabled or not – to show up to work in order to keep their jobs.  While the First Circuit in Mulloy invoked “commonsense” in recognizing that “show[ing] up at the workplace” need not be listed as an essential function in a job description in order to be considered as such, it is nonetheless advisable for employers to include it in their job descriptions as a means of preserving their right to decline requests for off-site work accommodations.