Bridging the Gap: Identifying Accommodation Pitfalls

BRIDGING THE GAP: IDENTIFYING ACCOMMODATION PITFALLS

ADA, RELIGION, PREGNANCY

I.Introduction

Employers have a duty to reasonably accommodate qualified individuals with a disability under the Americans with Disabilities Act Amendments Act (ADA or ADAAA) and employees’ religious beliefs under Title VII of the Civil Rights Act of 1964. Additionally, the Pregnancy Discrimination Act (PDA) requires employers to provide certain accommodations to pregnant employees with pregnancy related impairments. Requests for accommodations seem more prevalent than ever, and employers must think creatively to handle these issues. If employers are aware of their duties under the ADA, Title VII, and the PDA, they will have the tools needed to create a welcoming workplace and protect their organizations from liability.

II.Disability in the Workplace

A.ADA Overview

In general, the ADA prohibits discrimination against a qualified individual with a disability and requires employers to provide reasonable accommodations for the known disabilities of applicants and employees who are otherwise qualified to perform the positions held or desired, unless doing so would create an undue hardship. “Disability” is defined as (1) a physical or mental impairment that substantially limits one or more of the major life activities of an individual, or (2) a record of an impairment, or (3) being regarded as having an impairment. The term “disability” is broadly construed in favor of individuals.

For ADA purposes, a “physical or mental impairment” is any condition that weakens, diminishes, restricts or otherwise damages an individual’s health or physical or mental activity. Physiological disorders or conditions; cosmetic disfigurements; anatomical losses affecting one of the body’s systems; any mental or psychological disorder; intellectual disabilities; organic brain syndromes; emotion or mental illnesses; and particular learning disabilities are ADA-covered disabilities. However, certain characteristics or conditions such as kleptomania, compulsive gambling, pyromania, transsexualism, transvestism, pedophilia, exhibitionism, voyeurism, gender identity disorders not resulting from physical impairments, and current use of illegal drugs are not protected disabilities. 42 U.S.C. §12211.

“Major life activities” for ADA purposes are the “basic activities, including major bodily functions that most people in the general population can perform with little or no difficulty.” EEOC Regulation §1630.2(i). Such basic activities include walking, speaking, caring for oneself, performing manual tasks, seeing, hearing, breathing, learning, working, eating, standing, sitting, lifting, bending, reaching, concentrating, thinking, communicating, interacting with others, reading and sleeping. 42 U.S.C. §12102(2)(A). Under the ADA, “major bodily functions” include the immune system, normal cell growth, digestive, bowel, bladder, neurological, brain, respiratory, circulatory, endocrine and reproductive functions. 42 U.S.C. §12102(2)(B). The Equal Employment Opportunity Commission’s (“EEOC”) 2011 regulations add the hemic, lymphatic, musculoskeletal, special sense organs and skin, genital, urinary, and cardiovascular systems as major bodily functions which are ADA-protected.

An employee who claims to be substantially limited in the “performance of manual tasks” does not have to show that he is unable to perform a variety of tasks central to daily living. Rather, whether an individual is substantially limited in a major life activity is determined by a common sense assessment based on comparing an individual’s ability to perform a specific major life activity or bodily function with that of most people in the general population. Thus, an impairment would not need to prevent, or significantly or severely restrict, an individual from performing a major life activity in order to be a disability. 29 C.F.R. §1630.2(j). Temporary, non-chronic impairments of short duration with little or no residual effects will not typically be considered to be disabilities as there are no substantial limitations. However, an impairment can be substantially limiting even if it lasts or is expected to last fewer than six months. 29 C.F.R. §1630.2(j)(2)(v).

With one exception, mitigating measures are not considered in determining whether an individual has “substantial limitations” for purposes of being disabled. Except for “ordinary” eyeglasses or contacts, whether a person has a substantial limitation must be determined without regard to any mitigating measures like medication, assistive devices (i.e., prosthetics, hearing aids, cochlear implants, mobility devices, low-vision devices, and oxygen therapy equipment), assistive technology, auxiliary aids/services or learned behavioral or adaptive neurological modifications. 42 U.S.C. §12102(4)(E). Even though an individual’s use of “ordinary” eyeglasses or contacts will not render him/her “disabled” for ADA purposes, an employer should not use qualification standards, employment tests or other selection criteria based on an applicant’s or employee’s uncorrected vision unless it is job-related for the position in question and is consistent with business necessity. 42 U.S.C. §12113(c).

Negative effects from the use of a mitigating measure must be considered in determining whether a disability exists. Thus, prescription medication for a chronic, long-term condition that makes an individual unduly sleepy such that the person falls asleep on the job may be assessed for purposes of whether the individual is substantially limited in a major life activity. Impairments that are episodic or in remission, such as epilepsy, multiple sclerosis, hypertension, asthma, diabetes, major depression, bipolar disorder, schizophrenia and cancer, meet the definition of a disability if they would substantially limit a major life activity or bodily function when the impairments are active.

An individual who does not currently have a substantially limiting impairment but who had one in the past meets the definition of “disability.” Typically, such a person previously had a substantially limiting physical or mental disorder, such as heart disease or depression, in a major life activity, but no longer has such an impairment. A person who has been misclassified in educational, medical or employment records as having a substantially limiting physical or mental impairment in a major life activity also has a “record of impairment” for ADA protective purposes.

Thus, for example, while employers can refuse to hire an applicant or discipline/terminate an employee for illegal drug use, an employer cannot take action against an applicant or employee due to past rehabilitation treatment.

The ADA also protects persons from adverse treatment by an employer due to stereotypes, physical characteristics or manifestations of diseases that do not otherwise qualify as disabilities. The applicant or employee need only establish that the adverse employment action was because of an actual or perceived physical or mental condition, regardless of whether or not the impairment limits, or employer perceived the individual to be limited in, a major life activity. 42 U.S.C. §12102(3)(A). For example, an employer that declines to hire a person because he/she takes anti-seizure medication “regards” the individual as “disabled” in violation of the ADA even if the employer does not know the impairment for which the prescription is used. An employer’s obligation of reasonable accommodation only applies to actual disabilities and not to applicants or employees who are merely “regarded as” disabled.

An employer may ask an employee who appears to be having difficulty performing his/her job because of an impairment if he/she needs a reasonable accommodation without triggering “regarded as” disability coverage. An employer can also ask an employee for medical information as part of a reasonable accommodation interactive process without generating “regarded as” disability coverage. Likewise, an employer’s request for medical information to determine whether the employee presents a direct threat in the workplace does not trigger “regarded as” coverage if the request is founded on reasonable belief, based on objective evidence, that an employee may be a direct safety threat.

B.Interactive Process Obligations

An employer has an affirmative obligation to remove barriers in the workplace that could impede, or interfere with, a qualified individual’s ability to perform the essential functions of a particular position. These obligations may be triggered before a formal or specific request for accommodation is received. The EEOC’s enforcement guidance allows an employee to request an accommodation by using "plain English" and without ever mentioning the ADA or using the phrase "reasonable accommodation.” As such, managers should be trained to recognize an employee’s informal request for accommodation. Any time an employee indicates that he or she is having a work related problem due to a medical condition, management should be on alert and should consider whether the employee is making a request for accommodation under the ADA.

While an employee does not have to specifically request an accommodation, an employer only has a duty to accommodate disabilities of which it is aware. If a disability is not obvious, then it is incumbent upon the employee to notify his or her employer of the disability and the need for a reasonable accommodation. If the employee fails to do so, the employer is generally absolved of any duty to reasonably accommodate.

When an employee’s disability is obvious, however, the employer may not safely rely on the fact that an employee has not come forward to request a reasonable accommodation if such an accommodation appears to be required. In such circumstances, the employer is permitted to ask if the employee with the obvious disability requires some form of reasonable accommodation. If the employee denies the existence of a disability, or denies the need for an accommodation, then the employer has no duty to take further action to reasonably accommodate.

Once the employer becomes aware that an employee may need an accommodation, the employer must engage in an “interactive process” to explore potential accommodations. The “interactive process” involves back and forth discussions between the employer and a disabled employee in an effort to find an appropriate accommodation. An employee who refuses to engage in the process will likely lose an ADA claim. By the same token, an employer who refuses to do so will likely be found liable under the ADA if no reasonable accommodation is ultimately provided. According to the EEOC, employers, when engaging in the interactive process, should:

1. analyze the particular job involved and determine its purpose and essential functions;

1. consult with the individual with a disability to ascertain the precise job-related limitations imposed by the individual’s disability and how those limitations could be overcome with a reasonable accommodation;

1. in consultation with the individual to be accommodated, identify potential accommodations and assess the effectiveness each would have in enabling the individual to perform the essential functions of the position; and

1. consider the preference of the individual to be accommodated and select and implement the accommodation that is most appropriate for both the employee and the employer.

Notably, an employer is not obligated to provide the specific accommodation requested by the applicant or employee. As long as the accommodation offered by the employer is reasonable and effective, the employer will have fulfilled its obligation, even if the proposed accommodation was rejected by the individual. Engaging in good faith in the interactive process, even if a reasonable accommodation is not achieved, is a defense to a claim under the ADA.

C.Reasonable Accommodation Examples -- Common Issues

1.Assistive Devices

Some accommodations may be easy to implement and involve little or no cost. For example, courts have required employers to provide assistive devices as a reasonable accommodation. Some examples include specialized computers with ergonomically designed keyboards; voice operated systems; Braille readers; sign language interpreters or written materials for meetings or training sessions; and modified or ergonomically designed furniture. Other accommodations include providing music with a headset to block out distractions; “white noise” or environmental sound machines; handheld electronic organizers, software calendars and organizer programs; remote job coaching; and software that minimizes computerized distractions.

2.Leave of Absence

Generally, an unpaid leave of absence may be an appropriate accommodation when an employee anticipates being able to return to work after receiving treatment or otherwise recovering from the impairment. If an employee requests a medical-related leave for a disability, assuming the FMLA does not apply, an employer should consider whether the need for leave is a reasonable accommodation. If the request is covered by the employer’s general leave policies, leave should be given in accordance with such policy. If the employee requests more leave than what is available under company policy, absent undue hardship, the employer should provide additional leave where it is reasonable to do so. There is no set period of time that is considered reasonable per se. Courts generally agree that leaves extending beyond one year are not required, but courts will still make a fact specific analysis to determine reasonableness on a case by case basis. The ADA does not require employers to pay employees during a leave, unless paid leave is provided to non-disabled employees.

3.Telecommuting

Permitting an employee to work from home may be a reasonable accommodation if the request would be effective and would not cause an undue hardship. If the essential functions of the job can be performed at home, then an employer may be required to offer telecommuting as a reasonable accommodation. The central issue in making the determination is whether the employee will be able to perform the essential function of the job without physically being present at the work site.

In EEOC v. Ford (2015), an employee had a severe case of irritable bowel syndrome – including unpredictable episodes of bowel incontinence. The employee, whose job it was to purchase steel and auto parts, wanted to telecommute to her job up to four days per week. Ford, however, determined that regular attendance was an essential part of the employee’s job because she needed to interact constantly with suppliers and co-workers. Ford engaged in the interactive process and offered the employee a few alternative accommodations such as placing her closer to the bathroom and offering her another position more suitable to telecommuting. She could not agree to any predictable schedule in which the company could count on having her there in person and she rejected Ford’s proposed accommodations. Ultimately, the employee’s performance and attendance became unacceptable, and Ford terminated her employment.

The EEOC sued Ford under the ADA. Ford obtained summary judgment at the trial court level, but the EEOC appealed and won. Ultimately, the Sixth Circuit Court of Appeals vacated the appellate court’s decision and ruled in Ford’s favor, finding that an employer may refuse a telecommuting request when, among other things, the job requires “face-to-face interaction and coordination of work with other employees.” The Sixth Circuit noted that employers may require regular attendance, which is supported by the EEOC’s position on telework as an accommodation. Thus, while telecommuting should be offered as an accommodation in certain circumstances, the Forddecision makes it clear that technology does not necessarily moot essential job functions.

Although the Ford decision was a welcome result for employers, management should be cautioned not to dismiss telecommuting requests outright without engaging in the interactive process. Several factors should be considered in determining the feasibility of working at home, including the employer's ability to supervise the employee adequately; whether any duties require use of certain equipment or tools that cannot be replicated at home; and whether there is a need for face-to-face interaction and coordination of work with other employees. An employer should not deny a request to work at home as a reasonable accommodation solely because a job involves some contact and coordination with other employees.

4.Change in Assignment and Duties

Another form of reasonable accommodation may be job restructuring or job modification that enables the individual with a disability to perform the essential functions of the job effectively. This form of accommodation may involve reallocating and/or redistributing marginal functions of a job to another position. However, it does not require an employer to reallocate or redistribute essential functions of the position. While an employer is not required to reallocate the essential functions of a job, it may still be required to modify how, or when, those essential functions are performed, in order to discharge its reasonable accommodation obligations. For example, an essential function that is typically performed at one time of the day, such as an office worker’s duty to pick up the mail at the post office, may need to be rescheduled to another time of the day, as long as this does not cause an undue hardship for the employer.

5.Change in Schedule

An employer should also consider whether modification of an individual’s work schedule may be a form of reasonable accommodation that would permit an individual with a disability the opportunity to perform the essential functions of the job. Modified work schedules may include allowing full-time employees to work part-time or flexible schedules. For example, instead of working a traditional 9:00 a.m. to 5:00 p.m. day, an employee might work from noon to 9:00 p.m. Similarly, instead of working a traditional five day work week, eight hours each day, an employee may work four 10 hour days, including working over the weekend.

Modified work schedules are typically an inexpensive form of accommodation that are very popular with individuals whose disabilities require medical treatment or attention, or whose disabilities are affected by eating or sleeping schedules. However, modified work schedules can pose concerns for employers. For example, the employee’s job duties may require a high degree of oversight or frequent collaboration with other employees that make it necessary for the employee to work during regularly scheduled hours. If modifying a work schedule could significantly disrupt a job, or when a shift accommodation would cause other employees to have to do the disabled employee’s work, a court could find that making such an accommodationwould be an undue hardship.

D.Challenging/ Unique Cases

1.Service Animals

The EEOC does not have a specific regulation on or definition of service animals. A disabled individual who asks to bring their emotional support animal to work may need to be accommodated if the request is reasonable. Employers may require documentation from a reputable medical provider as to how the animal is necessary to permit the employee to perform the essential functions of his or her job.

While Title III of the ADA concerning public accommodations requires “service animals” to be allowed in all public access areas, it does not mandate the allowance of Emotional Support Animals (ESAs). Effective March 15, 2011, the Department of Justice (“DOJ”) revised Title III of the ADA to narrow the definition of a “service animal,” which is “any dog that is individually trained to do work or perform tasks for the benefit of an individual with a disability, including a physical, sensory, psychiatric, intellectual or other mental disability.” Other species of animals, whether wild or domestic, trained or untrained, are not service animals for the purposes of this definition.