Legal E-Bulletin - September 2000

New Resources for Attorneys on the Application of the ADA to Individuals with Diabetes:

 
REASONABLENESS, ACCOMMODATIONS, AND
REASONABLE ACCOMMODATIONS UNDER THE ADA

The past two editions of this column focused on an employer's duty to provide reasonable accommodation under the ADA. The June edition focused on the general nature of the employer's duty to provide reasonable accommodation and when that duty arises. In July the focused shifted to how an employer properly discharges his duty to reasonably accommodate an employee with a disability.

This month the discussion on reasonable accommodations concludes by focusing on specific types of reasonable accommodations that were disputed over and and ultimately ruled upon by a court.

I. Two General Categories of Reasonable Accommodations.

Under the ADA, it is a form of prohibited discrimination for an employer to fail to make a reasonable accommodation or to deny an employee an employment opportunity because of the need to provide a reasonable accommodation. 42 U.S.C. § 12112(b)(5)(A) and (B). The ADA also defines "reasonable accommodation" with a illustrative list of examples. The statute provides that the term "reasonable accommodation may include: (A) making existing facilities used by employees readily accessible to and usable by individuals with disabilities; and (B) 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, the provision of qualified readers or interpreters, and other similar accommodations for individuals with disabilities." 42 U.S.C. § 12111(9).

A. Making Existing Facilities Used by Employees Readily Accessible.

The examples of reasonable accommodations are divided into two general categories. The first category addresses the need to make the place of employment "readily accessible." This is the same term used in Title III of the ADA to describe both the removal of physical architectural, transportation, communication barriers and the provision of auxiliary aids. So the first general category deals with assuring that a work place is readily accessible when an individual employee has a need for a specific degree of accessibility.

At this point, it is important to recognize how Title III and Title I are designed to work in conjunction on accessibility. Under Title III, public accommodations have an immediate duty upon the law's effective date to remove barriers, incorporate accessibility features into altered facilities and built newly constructed facilities according to the Americans with Disabilitities Act Accessibility Standards (28 CFR Part 36, July 26, 1991) An "existing" public accommodation's immediate duty to remove barriers is required only to the extent that the action is readily achievable (as opposed to readily accessible). Readily achievable is a low level duty, which requires the employer to remove barriers only to the extent that the removal is not too difficult or too expensive.

The higher and comprehensive duty to make a facility readily accessible in compliance with the ADAAG does not arise until a public accommodation or a commercial facility builds new construction or alters an existing structure. Title I fills in the gap that is not addressed by Title III. The duty under Title III to remove barriers from existing facilities relates only to barriers that tend to exclude customers and clients with disabilities- not employees who work in public accommodations. Also, if the work place is a commercial facility (i.e., affecting commerce but not open to the public), there is no duty under Title III to remove barriers in existing facilities. The Title III duty to make public accommodations and commercial facilities readily accessible does extend to the portions of the facilities used by employees. The ADAAG requires that employee areas in new facilities be, "designed and constructed so that individuals with disabilities can approach, enter, and exit the areas. These guidelines do not require that any areas used only as work areas be constructed to permit maneuvering within the work area or be constructed or equipped (i.e., with racks or shelves) to be accessible." (ADAAG 4.1 Minimum Requirements, 4.1.1 Application.)

The duty to make public accommodations and commercial facilities readily accessible does not arise until the existing facility is altered or a new facility is constructed. For employees with disabilities that require physical accessibility accommodations, the gap in Title III coverage is filled by Title I's reasonable accommodation requirement, because the issue of accessibility becomes an employment matter. The Title I obligation to make "existing facilities used by employees readily accessible to and usable by individuals with disabilities" covers the portion of the existing facilities that are used by employees. Title III covers the portion of existing facilities used by customers of the employer. The difference is that a business open to the public (a public accommodation), that is an existing facility has a duty to remove barriers that exclude customers. The duty is general and is not dependant on a customer requesting the barrier removal. Also, the duty exists regardless of the number of employees the public accommodation may employ. The obligation to remove barriers in the workplace under Title I, however, is dependant on the employee requesting the barrier removal as a reasonable accommodation and only employers with 15 or more employees are obligated by law to provide reasonable accommodation.

In any event, Title I and Title III are interrelated to cover both the public spaces and work spaces in existing facilities.

B. Modification of the Manner and Circumstances in Which the Job Is Customarily Performed.

The second general category of reasonable accommodations includes modifications of the manner and circumstances in which the job is customarily performed. For this category of reasonable accommodations, the statute provides a representative list of the types of modifications that constitute a reasonable accommodation. This includes "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, the provision of qualified readers or interpreters, and other similar accommodations for individuals with disabilities." 42 U.S.C. §12111(9)(B) All of these accommodation involve taking reasonable mesures to make the job fit the individual, rather than making the person conform to arbitrary job parameters.

These forms of reasonable accommodation are core to understanding the meaning of reasonable accommodation under Title I of the ADA. This part of the ADA creates an important shift of the basic assumptions that employers make when creating jobs. Before the ADA, employers designed jobs with the generalized assumption that the job would be filled by a non-disabled person. Consequently, the job functions were designed with a non-disabled person in mind, and the functions were designed without accounting for any variation in the manner in which a job could be accomplished or the different range of the abilities of workers. Before the ADA, the worker was required to fit his abilities to the job. After the ADA the employer must make reasonable efforts to fit the job to the abilities of the employee when it is possible to do so.

Modifications in the manner and circumstances in which a job is customarily performed are the most frequently disputed requests for accommodations.

II. How the Courts Have Decided Dispute over Requests for Reasonable Accommodations.

A. Job Restructuring, Part-time and Modified Work Schedules.

Job restructuring is often misunderstood as requiring an employer to excuse a worker from performing the essential functions of the job. The objective of a reasonable accommodation is to enable the employee with a disability to perform the essential functions of a job, not to excuse him from performing legitimate essential job functions. This does not mean, however, that certain job functions cannot be reassigned. To distinguish between what functions can be reassigned and those that do not need to be reassigned, it is important to better understand what restructuring means (Equal Employment Opportunity Commission Enforcement Guidance: Reasonable Accommodation and Undue Hardship Under the Americans With Disabilities Act, 3/1/99, p. 25) defines job restructuring as:

(1) Reallocating or redistributing marginal job functions that an employee is unable to perform because of a disability;

(2) Altering when and how an essential or marginal function is performed;

(3) or Both

See also 29 C.F.R. §§ 1630.2(o) and 1630.9; and Benson v. Northwest Airlines, Inc., 62 F.3d 1108, 112-13 (8th Cir, 1995).

The significant point is that essential job functions do not have to be reassigned or reallocated, because if an employee cannot perform the function (even with some other form of reasonable accommodation) then the person is not qualified for the job and the employer has no obligation to provide an accommodation. However, the employer is required to adjust the manner or circumstances in which the essential functions are ordinarily performed so that the essential functions can be performed by the person with a disability. The essential character of job restructuring is changing the ordering or structure of the job without sacrificing the essential functions. If the requested accommodation seeks to eliminate or remove essential functions, the requested accommodation is seeking the creation of a new job rather than the re-ordering of the essential functions of the existing job. Of course, marginal functions are always a candidate for reassignment or elimination.

There are limits to the adjustments that the law requires. For example, in Treanor v. MCI Telecommunications, 200 F.3d 570 (8th Cir. 2000) the court concluded that restructuring could include having the employee work part-time instead of full time. Yet, in Treanor the court also concluded that having the employee return to work on a part time basis after an extended leave of absence was not feasible. The reason was that in the circumstances of that case, there was no available part-time position and the employer would be creating the part-time position for the plaintiff where such a position was not needed by the employer.

Job re-structuring does not require the employer to so radically alter the position that it is effectively altering the essential functions that comprise the job. In Anderson v. Coors Brewing Co., 181 F. 3d 1171 (10th Cir 1999), a brewery hired a worker for a multi-function position that required the worker to perform a variety of tasks at different locations in the plant as they arose. Anderson's disability made her unable to perform all of the functions that she was called upon to perform. She sought the accommodation of job restructuring. She wanted to perform only those essential functions that she was able to do, and have the other essential functions assigned or allocated to other available workers.

The court considered the request for an accommodation to be unreasonable because it sought to eliminate the essential function from the requirement of her employment, which fundamentally altered the nature of her job. If she had received the requested accommodation, the employer would have been converting a multi-function job into a single function job. Also, because the job functions that she was unable to perform were essential, they had to be performed by other workers. The other workers would have been required to take on additional and especially demanding responsibilities while the co-worker with a disability had only the lightest duty task. The court found that because the worker sought the reassignment or reallocation of essential functions, the employee actually sought the creation of a new position which did not exist. In Anderson, the court ruled against the employee with a disability.

Similarly, in Burch v. Nacgodoches, 174 F.3d 615 (5th Cir. 1999), the court held that a municipal fire department did not have to restructure the job of fire fighter in a way that would eliminate the essential function of fighting fires.

In Kennedy v. Dresser Rand Co., 193 F.3d 120 (2nd Cir. 1999), the court found that it was not per se unreasonable to restructure the plaintiff's job so that he reported to a different supervisor. In this case, the requested accommodation did not involve dispensing with any essential job function. The plaintiff intended to continue to perform the customary functions of the job, but needed to perform them under the supervision of another supervisor. The court ultimately ruled against the plaintiff on the grounds that the requested accommodation was impractical under the circumstances and imposed an undue burden because of the administrative and organizational costs. An interesting side point is that the court in Kennedy expressly departed from the EEOC guidance that suggests that being reassigned to a different manager is always unreasonable. The Court considered that each requested accommodation should be evaluated on its merits and in the circumstances in which it arises, and therefore no accommodation should be considered unreasonable in all circumstances. The fact that a particular accommodation may be reasonable only in the rarest confluence of circumstance, does not preclude it from being provided when those rare circumstances arise.

B. Reassignment to a Vacant Position.

Reassignment to a vacant position as a form of reasonable accommodation is somewhat different from other forms of reasonable accommodation. Generally, reassignment is not an appropriate reasonable accommodation if the employee with a disability is able to perform their current position with some modification. In this regard, reassignment to a vacant position could be considered the accommodation of last resort, when the employee is unable to perform their current job and no form of reasonable accommodation would enable the employee to perform the essential functions of their current position. See Wellington v. The Lyon County School District, 187 F.3d 1150 (9th Cir. 1999) and Smith v. Midland Brake, Inc., 180 F.3d 1154 (10th Cir. 1999).

1. Alternative Position must Be Substantially Equivalent or Comparable.

Reassignment to a vacant position presupposes another job exists in the ordinary course of the employers business, and the position is available at or about the time that reassignment is appropriate. The alternative position must be substantially equivalent or comparable to the position the person is vacating. The alternative position must be comparable in terms of salary, benefits, seniority and other advantages of the current position. Also the employer must undertake a reasonable effort to determine if any comparable position currently exists. See Chen v. Galen Hospital Illinois, 10 AD Cas. (BNA) 346 (N.D. Ill. 2000). If no comparable or equivalent position exists then employers may look at other positions that may be available at lower levels. If a position is available, then it may be offered as an accommodation. In this type of scenario, an employer would only be obligated to pay the employee the salary of that position.

All reasonable accommodation discussions should be interactive, including the process of reassigning an employee to a vacant position. The employer must be actively involved in making reasonable efforts in determining if a vacant position exists as the employer is in the best position to determine whether a vacant position exists.

In Norville v. Staten Island University Hospital, 196 F.3d 89 (2d Cir. 1999), the court of appeals found that the employer failed to reasonably accommodate an employee with a disability with reassignment. In Norville, the employer did reassign the employee to a vacant position. However, the court found that employer engaged in unlawful discrimination because the position to which the employee was reassigned had a significantly lower salary, benefits, seniority and other benefits and privileges of employment. This was considered discriminatory because at the same time, there was a vacant and available position that was comparable to the plaintiff's position that the person with a disability was able to perform. The employer did not consider or reassign the employee to the comparable position, but placed him in a lesser position.

2. Reassignment to an Existing Position. Creating a Position Is Not Required.

Employers are not obligated to create positions for reassignment. In Wellington, the court observed that the employer was under no obligation to create a position. If, however, the employer is creating a new position and the employee in need of reassignment, is qualified for that position then the employee should be reassigned to that position. In this case, the school district had created a position and the position was vacant at the appropriate time, but the school fired Wellington rather than reassign him. The school district took the unusual position of contending that it had created a job, but was not obligated to do so for Wellington, so it could terminate him rather than reassign him to the new position. Needless to say, the employer's position was odd; either it actually created the job for him and refused to place him or it had created the job as a business necessity but refused to reassign the plaintiff. While the reasoning is odd, perhaps the strategy was that if the employer acts arbitrarily, the result is unfair but not illegal. In Wellington, the court found sufficient evidence to create a triable issue of fact regarding whether the position was vacant at the time the employee requested reassignment as a reasonable accommodation.

3. Is the Requirement to Consider Reassignment a Mandate to Reassign?

Like other accommodation, if reassignment is an effective accommodation that does not impose an undue burden, the law mandates that the accommodation be undertaken by the employer. In Smith v. Midland Brake, Inc., 180 F.3d 1154 (10th Cir 1999) the court concluded that the requirement to reasonably accommodate is not optional. In Midland, it was not enough for the defendant to consider the plaintiff for a vacant position along with other applicants. The court held that the employer has an affirmative duty to reasonably accommodate. If reassignment was the appropriate form of accommodation, then the employer must reassign the employee to the vacant position. The court reasoned that the statute says "reassign" not merely consider for reassignment or permit the plaintiff to reapply. Requiring a plaintiff to reapply with other applicants is the same as termination because if the application is unsuccessful the employee is without employment. Also, there is no basis in the statute to treat reassignment differently from the other reasonable accommodations. The statute requires the employer to provide the other forms of accommodation when appropriate, not merely to consider providing them. Therefore, the employer must reassign the employee to a vacant position, not merely consider reassigning the employee.

C. Leave as a Reasonable Accommodation.

Like all other accommodations, a request for leave is reasonable where it is effective to enable an employee to perform their essential job functions. Many courts have adopted the presumption that regular and predictable attendance is an essential function of every job, and the inability to regularly and predictably attend work disqualifies a person for employment. While there is some sense to that presumption, it is not always true. For example, sick leave or discretionary leave is almost universally provided by employers to employees as a benefit of employment. The reason that sick leave is almost universally available is because employers recognize that every employee, whether disabled or not, will have irregular and unpredictable absences from work. An employer is discriminating if it generally allows employees without disabilities to take intermittent sick leave or other forms of irregular leave, but takes adverse action against an employee with a disability because they require time off for treatment or assessment.

In Nunes v. Wal-Mart Stores, 164 F.3d 1243 (9th Cir. 1999), the court observed that unpaid medical leave, extended medical leave, or an extension of an existing leave period may all be forms of reasonable accommodation. An employee cannot be found "unqualified" solely because the employee cannot work during the period of leave. In Nunes, the court reversed summary judgment against the plaintiff, finding that she presented sufficient evidence that her nine-month leave was a reasonable accommodation that would enable her to return to work and perform her essential functions. Moreover, the court found a genuine issue of material fact as to whether undue hardship existed because Wal-Mart had a policy of granting unpaid medical leave for one year, and because it had a regular practice of hiring temporary help during busy seasons, like Christmas time.

The general rule for leave is to assess whether the requested leave enables the employee to perform their job, or does the leave prevent the employee for performing the job. For example, in Walsh v. United Parcel Service, 10 AD Cas. 161 (6th Cir. 2000), the worker had been on leave for almost 18 months when the employer denied a request for an additional 90 days. The employee claimed that the additional leave was needed for a medical evaluation, but offered no explanation as to why that evaluation could not have been done in the preceding 18 months. More importantly, the plaintiff's own medical evidence indicated that the plaintiff may not have been able to return to work for another one to three years. Indefinite leave is not reasonable, and there was no indication that the additional leave would enable Walsh to return to work. Similarly, in Taylor v. Pepsi Cola Co., 9 AD Cas. (BNA 1731 (10th Cir. 1999), the court held that an indefinite period of leave is not a reasonable accommodation. At the time of his termination from the Pepsi Cola Co., Taylor had been on medical leave for over a year. He had informed his employer he could never return to his old job due to his disability, and could not state when he would be able to return to work, or in what capacity he would be able to return.

D. Appropriate Adjustment or Modifications of Examinations, Training Materials or Policies.

The duty to provide a reasonable accommodation applies not only to the way the worker performs the job, but also extends to how the employer applies its policies, practices and procedures to the worker. Employers should be prepared to provide accommodations during trainings where an employee with a disability needs one. In Vollmert v. Wisconsin Dept. of Transportation, 197 F.3d 293 (7th Cir. 1999), the employer failed to modify computer training for an employee with a learning disability. The employee was capable of learning the new skills, but the manner in which it was taught was not effective for her. A specialized modification in the manner of instruction would have enabled the employee to learn the new material. The employer actually provided her with only limited training and eventually transferred her to a less desirable job. The court ultimately concluded that the case should precede to trial because the testimony of a vocational rehabilitation expert was sufficient to create a material fact issue as to whether she could learn the system with proper training.

E. When the Duty to Accommodate Ends.

While these examples of reasonable accommodation are instructive, no form of reasonable accommodation is universally appropriate or inappropriate. Each case must be evaluated on its own merits and in its own circumstances. An accommodation that is proper in one case may not be proper in another. See Kennedy v. Dresser Rand Co., 193 F.3d 120 (2d Cir. 1999) (no form of accommodation is per se unreasonable, each accommodation must be evaluated on a case-by-case basis)

As pointed out previously, the duty to provide a reasonable accommodation arises when the employee requests an accommodation. A question that might reasonably follow is "When does the duty end?" The duty ends when the accommodation is no longer needed, or when the employment is terminated. However, termination may not always render a claim for an accommodation moot. In Roberts v. Progressive Independence Inc., 183 F.3d 1215 (10th Cir. 1999), the court concluded that an employee's reasonable accommodation claim does not become moot after termination, even if the ground for termination is found to be lawful. Although Roberts is a Rehabilitation Act case, the principal is applicable to ADA cases. Roberts requested reasonable accommodation for a business trip. The employer provided an accommodation that Roberts considered ineffective. When Roberts pressed the issue, he was terminated. The fact that Roberts was terminated before he took the business trip did not eliminate the employer's potential liability for failure to provide a reasonable accommodation because the duty to provide a reasonable accommodation arose while Roberts was an employee. 

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