The Americans with Disabilities Act requires employers to provide reasonable accommodations that will enable qualified individuals to perform their jobs, but what is the dividing line between reasonable and unreasonable? And what types of requests can employers reject because they would pose an undue hardship on their business?
While the answers to these questions often hinge on specific facts and circumstances, recent cases offer insights on how the courts and the Equal Employment Opportunity Commission approach failure-to-accommodate claims. Several examples were reviewed at the National Employment Law Institute's 28th Annual ADA and FMLA Compliance Update in Washington.
How Much Leave Is Reasonable?
Unpaid leave is a form of accommodation, but how much time is reasonable? That’s a fact-specific question, said David Fram, NELI’s director of ADA & EEO Services, who led the program.
In a 2017 case, the First Circuit held that an employee’s request for 12 months leave after she had already taken five months leave was not “reasonable" on its face. Beyond that, there aren’t any clear rules, Fram said.
To a certain extent, what’s required of employers depends on what would be an undue hardship on them. Wal-Mart, for instance, is such a big company with so many temporary, seasonal employees that a year of leave might not create an undue hardship, the Ninth Circuit found.
Fram drew special attention to a pair of 2017 cases—Severson and Golden—in which the Seventh Circuit held that “long-term medical leave” is NOT a reasonable accommodation. But this finding is “completely inconsistent with other courts” and “not the new trend,” according to Fram, who added that he “would not follow these [decisions] anywhere,” not even in the Seventh Circuit.
A related question for employers involves reinstatement following leave as an ADA accommodation. A recent Tenth Circuit decision faulted an employer for failing to hold an employee’s job open, and Fram said this means the same job must be kept open, unless there is an undue hardship. He said this differs from the standard under the Family and Medical Leave Act, which requires employers to reinstate returning employees to the same job OR an equivalent position.
Do the Same Work Standards Apply?
On the issue of performance requirements for disabled workers, the courts and the EEOC agree that employers need not lower quality or productivity standards as a reasonable accommodation, Fram said.
What happens if employers go beyond the ADA’s requirements by relaxing certain standards for a period of time? According to Fram, “you do not get punished for doing a nice thing.”
For example, the Eleventh Circuit held that an employer did not violate the ADA by discontinuing an employee’s assignment to the duties of a foreman, which was an accommodation the employer had provided after a back injury prevented the employee from meeting the physical demands of his regular job.
To avoid complications, Fram said if employers go beyond their legal obligations in offering accommodations, they should document the following:
That all understand and agree that certain duties are an essential function of the job;
That the employer is temporarily modifying the employee’s duties; and
That the time frame for the modification is up to the employer.
In addition, any job reviews or performance appraisals during this period should indicate that the employee isn’t doing the essential functions of the job, Fram said. However, the review can be based on the job the employee is currently doing, he said.
Is Telecommuting Reasonable?
Telecommuting, or working from home, is a possible accommodation if the need to work from home is because of a disability and the job can be done at home, Fram said.
In a Federal Sector Appellate Decision, the EEOC determined that an employee was entitled to telework due to loud construction that was making her migraines worse. Fram also referred to a Rehabilitation Act case from the District of Columbia Circuit that said “physical presence” at a specific time isn’t always an essential function. But this raises the question of when physical presence is required.
Certain jobs, such as the position of receptionist, cannot be done remotely, Fram said, adding “maybe one day [there will be] virtual receptionists… I don’t think we are there yet.” He cited a case in which a front desk receptionist’s ADA claim was dismissed because her request to telecommute conflicted with the essential job function of being present at the workplace.
Must Smells or Irritants Be Removed?
Employers sometimes receive accommodation requests related to smells or irritants in the workplace, but they aren’t required to eliminate everything, according to Fram. For instance, the EEOC held in a Federal Sector Appellate Decision that “an entirely fragrant free environment was not a reasonable request for accommodation, and would have imposed an undue hardship.”
On the other hand, keeping the work environment free of one particular smell or irritant may be reasonable, Fram said. He offered the example of an employee with a corn allergy who requested a corn free environment. The employer was required to prohibit workers from making popcorn in the workplace in order to accommodate the employee’s disability.
In such a situation, however, the confidentiality requirements of the ADA prohibit the employer from disclosing to other employees why the particular smell or irritant is being prohibited. If fellow employees refuse to comply with the ban by, for example, wearing more perfume or making more popcorn, the employer has grounds to discipline said employees, Fram said.
These are just a few examples of what employers may have to do to accommodate workers with disabilities, versus the types of requests employers may reject. For more insights on issues arising under the ADA, see related blog: The ADA Rewards Employers That Stick to the ‘Essentials.’
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