As companies continue to navigate this pandemic, now more than ever employees must understand their rights as it relates to disabilities and medical conditions.
Under the Americans with Disabilities Act (“ADA”), an employee suffering from a disability can request what are called, “reasonable accommodations.” Reasonable accommodations are essentially job modifications that will allow an employee to better perform the job (in relation to their disability). The question becomes what makes an accommodation reasonable, and what specifically can an employee request of their employer under the law?
The ADA defines “reasonable accommodation” as one that “may include job restructuring, part-time or modified work schedules, reassignment to a vacant position, acquisition or modification of equipment or devices, appropriate adjustment or modifications of examinations, training materials or policies . . . and other similar accommodations . . . .” 42 U.S.C. § 12111(9). Reasonable accommodations can be as simple as a request for an ergonomic chair or modified hours to attend doctor’s appointments. Once an accommodation request is made, the employer must respond and engage the employee in an attempt to reach a workable solution for the disabled employee (i.e. the “interactive process“). In determining what is a reasonable accommodation under the specific circumstances, businesses generally are not required to exempt employees from “essential functions” of their job or accept lesser work quality. It is often a fact specific inquiry whether a proposed accommodation is reasonable given the specific duties of the employee. Employers will point to a job description and their prior work directions to establish essential functions of the job. It is important to note that an employer only needs to provide a reasonable accommodation, and not the exact accommodation requested by the employee.
Part-time telework or a full-time work from home arrangement can be a reasonable accommodation. However, employers will often argue that telework is not reasonable because essential job functions cannot be performed at home. There is caselaw that described attendance at the work site as a essential function of most jobs. While these arguments have had success in the past, they will become increasingly more difficult in light of the pandemic. Zoom is now the way of the world. Employers across the country have embraced work from home arrangements. As such, businesses need to think twice before denying an accommodation request to telework. If you have a question about what is a reasonable accommodation, please contact our office for immediate assistance.
Additionally, a local appeals court recently shed light on an employee’s right to request alternative positions because of a disability. While reassignment is written directly into the statute – it is viewed as the accommodation of last resort. In the recent case of Elledge v. Lowe’s Home Centers LLC, the Fourth Circuit reaffirmed this notion, explaining that this status encourages employers to take reasonable measures to accommodate their disabled employees in the positions they already hold. In this case, the Court was satisfied that the employer, Lowe’s Home Centers, had offered reasonable accommodations in the form of light-duty status, a motorized scooter for the employee who had trouble walking, and a lower-level management position. The plaintiff did not receive reassignment in two other higher executive positions for which they applied. The Court was still persuaded that Lowe’s policies enabled it to make hiring decisions based on a neutral basis and reassignment was not required. The Fourth Circuit concluded that the ADA only required an employer provide the disabled employee with an equal opportunity to seek the alternative position, not to overrule otherwise neutral, business-based hiring policies. The lesson is that reassignment can be an accommodation, but it is typically the accommodation of last resort, and a neutral, merit-based hiring policy may shield employers from reassignment liability.
Freedman Law is highly experienced in accommodation issues. We frequently help employees obtain reasonable accommodations, including in telework and reassignment disputes. Please email ([email protected]) or call us today (301)-750-9766 if you need assistance.