Difficulties of Reasonable Accommodation under the Americans with Disabilities Act

I recently attended a webinar on the Americans with Disabilities Act (ADA), sponsored by the American Bar Association.  The primary points made during the webinar were

1. The amendments to the ADA passed in 2008 were designed to relax the definition of “disability.” Cases brought under the ADA should now focus more on whether the employer discriminated against the employee, and less on whether the employee is disabled.
2. Employers should be able to justify their attempts to accommodate the employee.  An employer should “stop; think; justify” any actions vis-à-vis a disabled employee.  This applies both to determining the essential functions of the job and to the discussion of reasonable accommodations to permit the employee to perform the essential functions.

One of the speakers during the webinar was Chai R. Feldblum, Esq., a commissioner with the Equal Employment Opportunity Commission (EEOC).  Commissioner Feldblum stressed that the EEOC does not want to preclude employers from getting their work done, nor reduce business productivity.  If an employer has its job descriptions in place that list the essential functions, and if the employer engages in an interactive dialogue with the disabled employee, then determining whether a reasonable accommodation is possible should be straight-forward.

My experience has been that the reasonable accommodation process is not as easy as Commissioner Feldblum makes it sound. Ideally, a reasonable accommodation can be found quickly, but often, the process is inexact and time-consuming.

Here are some of the problems encountered in finding reasonable accommodations:

First, there is the problem of keeping job descriptions up to date. In today’s workplace, jobs change quickly.  In a large company, it can be a full-time job for several employees to keep job descriptions updated.  And writing job descriptions is probably not the most efficient use of employees’ time – companies that seek to be nimble may not want to slow down to create job descriptions that will be out of date by the time they’re written.  Requiring that job description be written is one of the reasons lawyers and HR professionals get a bad name among managers, even when they point to the ADA as the reason for the requirement.

Second, while it is easy for an employer to say that a job function is “essential,” there are always other ways to get the work done. Since one possible reasonable accommodation is to “restructure” a job, an employer is always subject to being second-guessed on whether a particular job function is “essential” and need not be eliminated, or whether it is non-essential and the employer will have to find another way to get the function done, or do without the function.

Third, while the employer can set both qualitative and quantitative standards for acceptable performance, these standards are also subject to debate during the reasonable accommodation process.  If a leave of absence or a reduced schedule is a reasonable accommodation, then a production standard may need to be reduced along with the employee’s schedule.  How then will the employer get enough production out to satisfy its customers?

Fourth, the necessary accommodations of a disabled employee sometimes evolve over time, or require a good deal of experimenting to see what works and what doesn’t.  The attempts at accommodation may even be unsuccessful in the end, resulting in frustration for the disabled individual, as well as for his or her managers and co-workers. Sometimes the employee isn’t ready to stop working, even after many accommodations have been unable to get the employee back to a productive state.

These problems don’t even get to the issues that arise when the employee’s request for an accommodation is less than clear, when the employee doesn’t know what accommodation they think might work, or when other employees become upset at having their jobs changed because the employer is accommodating someone else.  For more information about the ADA, see the EEOC's website on disability discrimination.

The purpose behind the ADA is laudable.  The practice is often messy.  Even employers operating in good faith can find themselves in expensive litigation.  Who is to say what is “reasonable”? Even years of attempted accommodations may not be enough to satisfy the EEOC or a judge or jury.

What have your experiences with the ADA been? 

Favorite Firing: The Absent Nurse in the ICU (Second in a Series)

The Ninth Circuit Court of Appeals, one of the more liberal courts in the nation, declared in Samper v. Providence St. Vincent Medical Center, that attendance is an essential job requirement for some jobs.

This case arose under the Americans with Disabilities Act  (ADA) – a law with the laudable purpose of protecting the job rights of people with disabilities and requiring employers to provide reasonable accommodations to employees with disabilities.

The Facts:  A nurse in a neonatal intensive care unit (NICU) had fibromyalgia and missed a lot of work.  When she was absent, she could not care for the premature babies in the NICU – which was the essential function of her job.

As required by the ADA, the nurse and the hospital discussed accommodation of her inability to comply with the hospital’s attendance policy because of her disability.  The nurse wanted to be given an unspecified number of unplanned absences from her job, and to opt out of complying with the attendance policy at all.

The hospital had few nurses who could back up the employee in question, and said they could not accommodate her request.  The hospital worked with her through several years of poor attendance, and even permitted her to re-schedule her shifts on short notice. 

Finally, however, when even this flexible scheduling did not work to improve the nurse’s attendance, the hospital concluded they needed to move her to another department.

She refused the job transfer, continued to be absent, and even missed the meeting with her supervisor to discuss her attendance. Then she was fired for poor attendance, and she sued the hospital.

The Moral:  Even the liberal Ninth Circuit determined that attendance was an essential job requirement for a nurse.  As the Court said,

“Both before and since the passage of the ADA, a majority of circuits have endorsed the proposition that in those jobs where performance requires attendance at the job, irregular attendance compromises essential job functions.”

The Ninth Circuit agreed with its fellow courts.

In essence, the court held that you can’t take care of babies without being where the babies are:

“This at-risk patient population cries out for constant vigilance, team coordination and continuity.”

Good to know.  Employers do not need to “gut” their reasonable attendance policies, according to the Ninth Circuit.

But employers should keep in mind that this case does not provide leeway for employers to always  fire employees for poor attendance.  Some jobs can be done from home, or the scheduling of work time could be more flexible than a nurse’s shift.  A reasonable accommodation in these cases might well require that an employer not follow its attendance policy.

The health care sector is a growing part of the U.S. economy, and aging baby boomers will need more personal services in the years ahead.  These caregiving roles will always require attendance as an essential function of the job. 

By contrast, more and more jobs that are done today in offices will be able to be done from home as technology develops.  Attendance during particular hours will become less important in these jobs.  Even jobs requiring teamwork or customer service may be able to be accomplished through virtual contact, using social media, Skype, or other means of long-distance interaction.

Which of these competing views of the workplace will grow faster? An interesting question for the demographers. Are there any opinions among my readers?

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I’d like to occasionally post about employee terminations that illustrate the state of the modern workplace.  As I wrote in the first “favorite firing” post, if you have any ideas for stories to publish, please email me or leave a comment below.  But please disguise the facts to protect the innocent (and not-so-innocent) unless the situation is well-publicized, and then include a link to support your story.  Only verified stories will be published.