Working off site not always a right
Published 10/05/06

 A disabled worker's protections under the federal and state disability discrimination laws do not generally include a right to work off site.

A recent decision from the First Circuit Federal Court of Appeals, which hears appeals from both New Hampshire and Massachusetts federal employment cases, illustrates this point.

In the case of Michael D. Mulloy v. Acushnet Company , the Court on August 24, 2006 agreed with the trial court that Mulloy could not pursue his federal and state employment disability discrimination claims because Mulloy failed to establish a factual allegation sufficient to go to trial that he was capable of performing the essential functions of his job by working from a remote location.

Acushnet, headquartered in Fairhaven , Massachusetts , manufacturers and sells golf balls and other golf equipment and accessories. It has several manufacturing facilities including a facility in Dartmouth , Massachusetts where Mulloy worked. Mulloy began work in December of 1998 as an electrical engineer. The golf ball manufacturing process uses materials containing chemical sensitizers known as isocynates which exposure to thereto, at a minimum as Acushnet contends, may exasperate symptoms for those with asthma, allergies, or chronic respiratory problems or, at a maximum as Mulloy contends, such exposure may cause those conditions.

Mulloy: designed programs for the golf ball manufacturing machines governing their movement and timing; specified, purchased, and supervised the installation of electronic controls for new and modified equipment; evaluated machine capabilities and identified mechanical and electrical changes; trained and supported maintenance personnel to troubleshoot (i.e.: respond to malfunctions with) electrical and electronic controls; supported electrical safety programs; and specified electrical services for new machines.

Mulloy became ill including feeling "foggy and feverish" and suffering other respiratory problems such that he was eventually removed from exposure to the isocynates and then from the entire manufacturing facility.

The Court noted that there was an issue as to whether or not Mr. Mulloy met the definition of being disabled under the federal and state employment disability discrimination laws but assumed that he could meet that burden without ruling on it in that it concluded that even if he was disabled he could not prove that he could perform the essential functions of the job with or without a reasonable accommodation and therefore was not entitled to protections under the federal or state law.

While Mulloy claimed that he could do his work remotely, the Court found unequivocally that evidence submitted by the employer proved that he could not do so. It found in part that it was undisputed that over 70% of Mulloy's former job functions are currently performed in the same manufacturing plant by either employees or outside vendors.

Disabled workers seeking to work remotely are faced with the general rule that, except in an unusual case where the worker can effectively perform all work-related duties remotely, a worker who does not come to work cannot perform any of his functions, essential or otherwise. Among the essential functions listed in the job description for Mulloy's position were teamwork, troubleshooting, evaluating, training, and supporting all of which imply some level of interaction with machines and personnel at the manufacturing plant.

The Court noted that the mere fact that there is an absence of "physical attendance" from the job description in no way means that that requirement was non-essential. As common sense suggests, the employer probably did not even consider informing its workers that they were actually required to show up at the workplace when it drafted the job description.

As a result, in this case, Mulloy has an order precluding him from going to trial on his claims. Of course, this ruling has no bearing on whether or not Mulloy was entitled to worker's compensation for an alleged work-related injury, but is consistent with many other legal precedents which state that employers are not generally required to accommodate a disabled worker by permitting telecommuting when it would not permit it for a non-disabled worker.

J. Daniel Marr is a director and shareholder of Hamblett & Kerrigan, P.A. His legal practice includes counseling businesses and business persons on a variety of legal issues, including employment, and advocating on their behalf. You can reach Attorney Marr by e-mail at: dmarr@hamker.com

This information is general information and may not reflect the most current legal developments, verdicts or settlements. The information provided should not be relied upon as an indication of the actual state of the law or of future developments. The information contained on the Hamblett & Kerrigan website is for informational purposes only and does not constitute legal advice. If the information referenced may be of legal importance to you, you should consult with an attorney to provide you with legal guidance and opinion as the the effect of the current law upon your situation.