San Francisco Employment Law Firm Blog

Asthma and sensitivity to tobacco smoke and other pollutants are conditions that have been recognized by courts as a protected disability at workplace, entitling the workers suffering from those conditions to a reasonable accommodation.

In County of Fresno v. Fair Employment & Housing Commission (1991), the employer (the county) argued that hypersensitivity to smoke is either a non-handicapping respiratory disorder, not covered by the California disability laws, or an "environmental limitation" rather than a physical limitation. The court has rejected both arguments, finding that because of the respiratory disorder, exposure to tobacco smoke produced by other employees substantially limited the Plaintiff's ability to breathe, rendering the Plaintiff "handicapped" and covered by ADA (Americans with Disabilities Act) / FEHA (Fair Employment and Housing Act). In that case, the employer actually attempted to reasonably accommodate the plaintiff, and the following actions were taken: smokers used desktop air filtration machines, employees kept windows open, management separated Plaintiff's desk from the desks of smokers, Plaintiff was offered an alternative position in another department, where smoking was not permitted. Because all of the above accommodations proved to be either futile or ineffective, the court still found that the employer failed to reasonably accommodate Plaintiff.

One of the hallmarks and great advantages of California disability laws, which encompasses employers' obligation to engage in interactive process to find reasonable accommodations to qualifying employees with a disability or a medical condition, is its flexibility. Generally, the employer must consider various solutions to accommodating an employee and be reasonable creative and considering different types of things that the company can do to help the disabled worker remain in the workforce.

One of such accommodations, which can be particularly relevant in cases where an employee has a psychological/mental disability is working from home. In Humphrey v. Memorial Hospitals Association, the Ninth Circuit specifically noted that allowing an employee who suffered from OCD (obsessive compulsive disorder) to work from home can be one type of reasonable accommodation that should be considered if it may be effective and if performing that employee's job duties from home would not impose undue hardship on the employer. In that case, the other fact that was helpful to plaintiff is demonstrating that some of her co-workers worked from home, while she was denied that accommodation, and that company had a policy of allowing employee to work from home.

Even though the employer argued that there was no guarantee that working from home would be an effective accommodation to claimant, the court was not persuaded, as one doctor's testimony that working from home could have been effective was sufficient to trigger liability against the employer for failure to provide such an accommodation.