In a packed room at the 2018 SHRM Employment Law and Legislative Conference in Washington D.C., Eric Meyer of FisherBroyles, LLP provided practical guidance for HR Professionals so that they can handle an ADA accommodation situation at their organization.
Below are some key takeaways to answer your biggest ADA headaches:
Meyer kicked off the session addressing what is considered a reasonable accommodation under the ADA. He boiled it down to anything an employer can do to allow the employee to perform the essential functions of the job and gave various examples, such as a flexible work schedule, a transfer or telecommuting.
Essentially, Meyer advised that when it comes to a reasonable accommodation as a best practice, if the request is at all reasonable, “give them what they ask for.” He did state, however, that what is reasonable to one employer might not be true for another. For instance, Walmart may be able to provide a reasonable accommodation that a “mom and pop” store may not be able to provide.
Essential Job Functions
Meyer then addressed the issue of essential job functions. He noted that an essential job function does not even have to be performed on a daily basis and could be something that is done only a few times a year, but is something that is critical to getting the job done. Employers should not only include these essential job functions in a job description, but also clearly specify them as essential job functions.
Meyers highlighted the 6th Circuit Court of Appeals en banc ruling in EEOC v. Ford Motor Company which held that the employee’s accommodation request to telecommute four days a week was not reasonable because her essential job function required regular and predictable on-site attendance.
Undue hardship is something that is decided on a case-by-case basis and may differ depending on an employer’s size. In order to claim an undue hardship defense, an employer must explain clearly and document why something is an undue hardship on the business. Meyer’s advice is to have a “respectful, but honest conversation.”
When speaking of undue hardship, Meyer highlighted the Bender v. Norfolk Southern Corp. ruling by a federal court in Pennsylvania. In that case, the employee was a train conductor with diabetes seeking an accommodation of additional meal breaks, but the employer denied the request because it argued that it would disrupt the business, as trains are time-sensitive. The court ruled for the employer, finding that the likely loss of customers because of time delays was an undue hardship.
Another ADA challenge employers confront involves when there is an open position available in the organization. For instance, what happens if an employer through the recruiting and hiring process finds a candidate that is a “rock star,” but a current employee with lesser qualifications is seeking a reassignment to that very same position as an accommodation. Who should the employer choose? Well that depends as there is a split in the circuits on this issue.
The 10th Circuit ruled in Smith v. Midland Brake that the current employee got the job even if it meant displacing the more qualified candidate.
However, in EEOC v. St. Joseph’s Hospital, the 11th Circuit reached the opposite result. Two other federal appellate courts (the 5th and 8th Circuits) have followed the 11th Circuit’s lead. Unfortunately, the Supreme Court has yet to resolve this issue.
Managing Performance Issues
What if that problematic employee the employer was planning on terminating comes to an employer and says I need an accommodation? Should the employer provide it and hold off terminating that employee?
Meyer said that an employer is not required to excuse past workplace misconduct or performance issues as a reasonable accommodation, even if the past misconduct was because of the employee’s disability. Employees “don’t get a retroactive break if they don’t bring up a disability.” When terminating employees, Meyer noted that employers should make sure to document that the termination is based on performance, not disability.
Meyer also addressed ADA accommodations when it comes to medical marijuana, which has become a more prevalent workplace issue. Under federal law, there is no duty to accommodate marijuana use.
However, Meyer cautioned that some state courts have read that duty into the state law even though not explicitly written. He highlighted the Massachusetts Supreme Court case of Barbuto v. Advantage Sales and Marketing, which held that under state law an employer must reasonably accommodate a medical marijuana user unless there is an undue hardship.
Finally, Meyer discussed a first-of-its-kind case dealing with gender dysphoria, which is the condition of having unease or unhappiness with one’s own biological or usual gender role, typically accompanied by a strong identification with the opposite gender and the desire for the body and role of the opposite sex.
In Blatt v. Cabela’s Retail, Inc., the employee claimed that gender dysphoria is a disability entitled to ADA protection. And the court agreed in large part, holding that gender dysphoria is a disabling condition that limits a substantial life activity, since it includes stress and other impairments.
Based on the complexities of the ADA, Meyer highlighted throughout his presentation the following best practices to be proactive in handling ADA accommodation requests:
- Avoid stereotypes;
- Have an open dialogue;
- Be proactive-not reactive;
- Document performance issues;
- Train managers; and
- Stay updated on court decisions.