Most of the people that I work with are aware that the American’s with Disabilities Act (ADA) allows employees to request modifications to their employment so that they an continue to work. However, often they are less clear on what sort of modifications they can request and what work responsibilities they must still be able to complete. A trio of recent cases demonstrate why it is important to make your request for accommodations as broad and all-encompassing as possible…
Before delving into the cases some background information on the ADA accommodation process may be helpful (for a deeper analysis, check out my previous posts). When an individual has a disability they can request accommodations and their employer and this triggers an interactive process where the employee and employer work together to find a reasonable accommodation that allows the employee to complete all of their necessary duties. The employer is not required to agree to any specific accommodation but must provide some modification unless they can show “undue hardship.”
This last point, that employers are not required to provide a specific requested accommodation, is demonstrated by a recent case from Hawaii. See Lu v. Longs Drug Stores, 28 Am. Disabilities Cas. (BNA) 1248 (D. Haw. 2013) (available here) (hat tip to the Employer Handbook for bringing this case to my attention). In Lu, an employee claimed that she was suffering from stress and depression caused by ongoing discrimination and retaliation based on her national origin by her supervisor. The employee’s doctor wrote a letter requesting that the employee be transferred and the employer refused. The employee was terminated for other reasons and brought suit claiming a failure to accommodate. The court dismissed the employee’s claim, citing a bevy of similar decisions, and held that an employer is not required to transfer an employee or change their supervisor as a reasonable accommodation.
While Lu, demonstrates the limits of what an employer can be forced to do, a decision from early last year shows why it is important when requesting accommodations to make your request as broad and thorough as possible, even if some of the proposed accommodations may not technically qualify as “reasonable.” See McMillan v. City of New York, 711 F.3d 120 (2d Cir. 2013) (available here) (I previously touched on this case focusing on the employee’s mental illness). In McMillan, an employee was routinely late to work due to a side effect of medication. For over a decade, the individual’s employer had forgiven the tardiness and granted the employee greater flexibility in setting his schedule. The employee’s supervisor changed and the new supervisor directed the employee that no further tardiness would be allowed. The employee then requested an explicit accommodation allowing him to arrive late and when the employer suspended him for arriving late, he brought suit for failure to accommodate. The Appellate Court noted that normally start time is an essential function of work and that requesting a later start is unreasonable as a matter of law. However, the Court held that because the employer had been allowing the late start, even if they did not explicitly call it an accommodation, they had shown that the employee’s request was not unreasonable. Therefore, an employee should be sure to request a wide range of accommodations because if their employer agrees a court may find an otherwise unreasonable accommodation to be acceptable.
Finally, when considering what accommodations to request, a recent case from the Fifth Circuit Court of Appeals (covering Louisiana, Mississippi, and Texas) finds that while accommodations must allow an individual to complete the essential function, they need not apply only to essential functions. See Feist v. Louisiana, 730 F.3d 450 (5th Cir. 2013) (available here) (hat tip to the Employment Law Blog for bringing this case to my attention). In Feist, an employee requested that her employer provide a free on-site parking space to accommodate her disability which limited her mobility. Both the employee and the employer agreed that the parking space did not have any direct relation to the essential functions of the employee’s work responsibilities and that the disability itself did not interfere with the employee’s work. The employer denied the accommodation because it was not related to the essential functions of the job and the employee brought suit. On appeal, the court held that there is nothing in the statutes or regulations regarding the ADA that requires accommodations be given only when related to performance of essential job functions. Therefore, the court overturned dismissal of the employee’s claim and sent the matter back to the district court for determination of the reasonableness of the request (with citation to EEOC guidance that specifically approves of reserved parking spaces).
Taken together Lu, McMillan, and Feist, provide important lessons for individuals with disabilities. First, be aware that your employer will not be required to accept every (or potentially even any) accommodation that you request, they must give only a “reasonable accommodation.” Second, notwithstanding that fact, request every potential accommodation that would allow you to complete the essential functions of your job because if your employer grants the accommodation then a court will weigh that in later determining if it is “reasonable.” Last but not least, when considering what accommodations to request be sure to include accommodations that allow you to do your work or get to your work site even if they are not strictly tied to your job responsibilities.
These issues are always complicated, so if you have questions be sure to contact an experienced lawyer in your area. Missouri NEA members should be sure to contact their UniServ Director at their first opportunity because they are experts at working through these issues.