Recently, I have written about the “at-will employment” rule and some of its exceptions. One of those exceptions is an employer’s obligation to provide “reasonable accommodations” to certain employees. In my experience, this is an obligation that many employers — and, sometimes, employees and their care providers — fail to understand and implement properly. So, what is this “reasonable accommodation” rule and who does it apply to?
The Americans With Disabilities Act (the “ADA”) and comparable state law protects “qualified individuals with a disability.” If an employee is a “qualified individual with a disability,” then the ADA prohibits the employer from taking any adverse action against that employee (such as termination or demotion) based on the employee’s disability. This is classic discrimination law and similar laws protect classifications other than disability (such as gender, religion, race, national origin and sexual orientation.)
The ADA has another – and often misunderstood – requirement, however. If an employee is a “qualified individual with a disability,” her employer also has an AFFIRMATIVE DUTY to reasonably accommodate that disability so that the employee can do her job, even if the accommodation requires the employer to incur an expense or provide something for the “qualified individual” that it would NOT provide to a non-disabled employee.
An “accommodation” is essentially ANY modification that allows an employee to perform the “essential functions” of his or her job. Examples include modifying physical facilities to accommodate a mobility issue or other physical impairment, or allowing an employee to take a temporary leave of absence or work a reduced schedule while receiving treatment for depression or another mental health issue.
The employer’s duty to accommodate trumps any internal company policies. For instance, an employer may have strict no-fault attendance or tardiness policies that provide for termination of employment after a fixed number of absences or tardies per year, regardless of the reason. Or, the employer may have a mandatory overtime requirement that applies to all employees in a particular department or during particular times of the year. Nonetheless, the employer may be required to excuse a disabled employee from these policies, and it is no defense that the employer does not similarly excuse non-disabled employees. That is the point of a “reasonable accommodation” under the ADA – it must be provided to accommodate the disability and level the playing field for those individuals who can otherwise perform the essential functions of their jobs.
“Disability,” “qualified individual,” “reasonable accommodation” and “essential functions,” among other terms, have distinct legal meanings under the ADA. Whether an individual employee is “disabled” under the ADA or otherwise a “qualified individual” depends on the employee’s particular impairment and the specific duties of that employee’s job. Whether an accommodation is “reasonable” depends on still other factors, including the size and resources of the employer. In disability discrimination and failure-to-accommodate cases, these issues are often vigorously contested. Thorough development of the relevant evidence and proper presentation of these issues to a Court is critical to the employee’s success in a disability discrimination or failure-to-accommodate case.
Then again, if you were me, you would say that is where the fun begins. . .
Janie Lanza Vowles represents individuals and businesses in a variety of wrongful termination cases, including cases involving wages violations, gender, disability and other forms of discrimination, failure to accommodate, and retaliation. If you have a question about this blog post or any other employment-related issue, feel free to contact Attorney Vowles to discuss your matter further.