Just how far does an employer have to go to reasonably accommodate a disabled employee?

     The Americans with Disabilities Act ("ADA") does not answer this question because the ADA provides only in general terms that a reasonable accommodation "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 policies, and other similar accommodations for individuals with disabilities." 42 U.S.C. §12111(9)(B). This is just a list of various types of accommodations which may be reasonable, not an explanation of what particular reasonable accommodation may be required in a particular situation. So how is an employer to know just how far the employer has to go to reasonably accommodate a disabled employee? The answer, of course, is that it all depends on the facts of the employer and employee's particular situation. That answer, in turn, is helpful only if we use it to point us to a review of the particulars of many decided cases. From these cases we can get a good idea of what the parameters of the duty of reasonable accommodation are.

     During the late 1990's, the United States Court of Appeals for the First Circuit (a federal appellate court in Boston) decided many cases involving ADA reasonable accommodation issues. A review of these cases shows that the cases may be broadly divided into two categories: (1) cases involving disabled employees' requests for temporary accommodations, and (2) cases involving disabled employees' requests for various permanent work changes.

     A. Temporary Accommodations.

     The temporary accommodation cases are Criado v. IBM Corp., 145 F.3d 437 (1st Cir. 6/5/98), Ralph v. Lucent Technologies, 135 F.3d 166 (1st Cir. 2/2/98), and Evans v. Federal Express Corp., 133 F.3d 137 (1st Cir. 1/9/98).

     1. The Criado Case: Request For Short Extension Of Leave Was Valid.

     In the Criado case, the employee was a salesperson who had worked productively and well for IBM for many years prior to 1994. In 1994 she began suffering acutely from anxiety disorder, depression, and attention deficit disorder. The employee's condition started interfering with her work, so on her doctor's advice and with IBM's approval, the employee took a three week disability leave to try to recover from her condition and regain her ability to work productively. Unfortunately, at the end of the three weeks the employee was not well enough to return to work, and so she did not return to work. Instead, she asked through her doctor for a "short" extension of her disability leave (probably about a month more). The doctor was optimistic and predicted that with a further leave she would "completely recover" and be able to return to work. The company initially did not receive the doctor's request, but after it received the request and knew the doctor thought a short further leave would be successful, the company denied the extension and then discharged the employee for her unauthorized absence from work. The Court held that the employee's request for a short extension of her leave was a reasonable accommodation request which should have been granted. The evidence showed that a short extension of the employee's leave would not have produced an undue burden on IBM's operations, and that the leave requested by the employee was well within the 52 weeks of disability leave the company normally provided to its employees.

     2. The Ralph Case: Request For Temporary Part-Time Work Was Valid.

     In the Ralph case, an employee suffered a mental breakdown and went out of work on a one-year paid disability leave. While out on leave, the employee claimed that his former co-workers and supervisor had harassed him while he had been working. At the end of the leave period, the employee returned to work. At the employee's request, the company placed the employee in a new worksite and with a new supervisor. During his first two weeks back, the employee had some run-ins with his former co-workers, and he had some problems and missed time from work. The employee's doctor then suggested, and the employee requested, that the employee be afforded the accommodation of a trial period of temporary, part-time work of only working four hours per day for four weeks. The purpose of this trial period was to give the employee a "phase in" period to readjust to his work environment. The employer denied this request on the ground that it had already done enough to accommodate the employee by giving him a one year leave of absence (with disability pay) and changing his work assignment and supervisor. The employer did not claim or prove that granting the request would have been an undue hardship on the employer. The Court held that the employee's request for a temporary trial period of part-time work was reasonable, "so reasonable, in fact, that we are puzzled that Lucent has drawn a line in the sand at this point." The Court noted that if the employee failed this four-week test, the employee would have no further reinstatement rights.

     3. The Evans Case: Request For Second Substance Abuse Treatment Leave Denied.

     In the Evans case, the employee started working for the employer in 1989. The employee took a four-week leave in 1991 for drug and alcohol treatment. The employee returned to work for the company thereafter. His attendance record was poor. In late 1993, after receiving a written warning for excessive absenteeism, the employee missed more days of work. On one day in February, 1994, the employee was absent and did not call in. The next day, the employee came to work and asked for a four-week leave to enter an alcohol rehab program. The employer refused the leave request because of its "heavy workload" and the employee's prior drug and alcohol treatment leave. However, the employer gave the employee two days off. Thereafter, the employee continued working for the employer, but he also continued missing time from work. After he violated a "last chance" agreement, he was forced to resign in March, 1994. He then claimed that he should have been given an alcohol treatment leave in February, 1994. The Court assumed that the employee was disabled by alcoholism, that his alcoholism caused at least some of his absences, and that he had made a timely request for a treatment leave. Nevertheless, the Court held that the employee's request for a second substance abuse treatment leave was not reasonable because (1) the leave was unlikely to solve the employee's problem, and (2) multiple leaves are not generally required under the ADA anyway. The Court said: "It is one thing to say that further treatment made medical sense, and quite another to say that the law required the company to retain [the employee] through a succession of efforts." The Court noted that the ADA has a specific provision which deals less favorably with alcoholism and drug abuse. 42 U.S.C. §12114(c).

     4. Comment On The Temporary Accommodation Cases.

     As a general rule, temporary accommodations are much more likely to be reasonable accommodations than permanent accommodations. Two very common types of temporary accommodations used by most employers are (1) short or temporary unpaid leaves of absence, and (2) short or temporary trial return to work periods. The Criado and Ralph cases show that these types of accommodations usually will be required reasonable accommodations. An employer which rejects a request for such a temporary accommodation must be prepared to articulate and prove that such an accommodation would be an undue hardship on the employer.

     The Evans case seems to be inconsistent with the other cases. To reconcile the Evans case with the Criado and Ralph cases, the Evans case may be understood as a drug/alcohol case rather than a temporary accommodation case. The ADA has a specific provision authorizing employers to hold an employee who uses drugs or is an alcoholic to the same qualification and performance standards as other employees, "even if any unsatisfactory performance or behavior is related to the drug use or alcoholism of such employee." Certainly, if one ignores the drug/alcohol nature of the case and considers only the temporary accommodation nature of the case, four weeks off for medical treatment once every four years won't be an undue hardship for most employers, so such four-week leaves usually will be reasonable accommodations.

     The Evans case may also be understood as a "prospects of a successful leave" case. In the Criado case the evidence showed that if the employee were given a short further leave, the doctor "was optimistic" and "predicted" that the employee would be able to return to work, whereas in the Evans case there were "real doubts whether the accommodation would solve the problem," and the likelihood of success was considered "chancy." The general rule is that an employer is not required to undertake an accommodation which will not be successful. Also, in Criado a doctor had specifically prescribed a further short leave of absence, whereas in Evans the employee had no doctor directing the employee to go in for alcohol treatment, the employee had just decided for himself to ask for the treatment leave. In other words, the employee in Evans had no medical justification for his leave request.

     Finally, noteworthy in these temporary accommodation cases is the complete absence of any reference to the federal Family and Medical Leave Act ("FMLA"). Apparently, the employees in the Criado and Evans cases were not entitled to any FMLA leaves and therefore did not base their leave requests on the FMLA. For many employers and employees, however, the employees will be eligible for FMLA leaves of up to 12 weeks per year, which means (1) that such employees will have an FMLA right to leaves from work of the type and duration requested in the Criado and Evans cases, (2) that such employees usually will get such FMLA leaves fairly automatically, and (3) that the ADA's reasonable accommodation requirements often will apply only to non-FMLA leave requests or post-FMLA leave requests.

     B. Permanent Accommodations.

     Employers looking for some limits to the concept of reasonable accommodation will be happy to learn that in five cases the First Circuit rejected disabled employees' claims for permanent accommodations. In all five cases, the employees' claims were rejected by summary judgments (i.e., without trials).

     1. The Champagne Case: Request To Avoid Rotating Routes Denied.

     In Champagne v. Servicestar Corp., 138 F.3d 7 (1st Cir. 3/12/98), an employee with a mental disability claimed that he had a right to a reasonable accommodation which the employer gave to him and then unlawfully threatened to remove. The Court held that the employee had no right to his desired reasonable accommodation to begin with, so the threatened removal of the accommodation was not unlawful. The employee was a delivery driver for a company. The company had a general rule that drivers were supposed to "rotate routes." The employee developed a mental disability which the employee and his doctor said required that he work a "set route" and that he not rotate routes. The employer accommodated the employee for several years by letting him drive a "set route." A few other employees were also allowed to drive set routes. When new managers came to the employee's work location, they decided, for legitimate business reasons unrelated to the employee, to reinstate the strict route rotation requirement for all drivers. They notified the employee and all other drivers of this requirement. They labeled the requirement as an "essential function" of the driving job, and they said that if the employee could not rotate routes because of a medical restriction, the employee would be transferred to a non-driving job (which was a lower-paying job) until his medical restriction was lifted. The Court held that the employee did not have a right to the reasonable accommodation of being exempted from the route rotation requirements. The Court said: "Under the ADA, [the employer] has substantial leeway in defining the essential functions of its truck driving positions, and it may require its drivers to be able to perform those functions. That [the employer] voluntarily decided to permit [the employee] to avoid route-rotation for a period of time does not establish that avoidance of required route-rotation was a required reasonable accommodation. It is true that other managers had not enforced the route-rotation policy strictly in the past, but that does not permit the conclusion that the decision by new managers to enforce company policy is a threat or interference with ADA rights. We stress that the decision of new managers to enforce the policy was applied uniformly."

     2. The Laurin Case: Request To Avoid Rotating Shifts Denied.

     In Laurin v. Providence Hospital, 150 F.3d 52 (1st Cir. 7/28/98), a nurse who worked in the maternity unit developed a seizure disorder/epilepsy. With her doctor's support, she asked that she be exempted from working her regular rotating shifts (of days, evenings, and nights) and that she be permanently assigned to the day shift. The hospital stated that shift rotation was an essential function of the nursing job and a requirement in the hospital's collective bargaining agreement with the nurses' union. Nevertheless, as a temporary accommodation, the hospital assigned the nurse to a days-only schedule for six weeks, during which time the nurse was to investigate applying for any available days-only jobs. The nurse suffered further medical problems, and the hospital extended her temporary days-only assignment for about two more weeks. The nurse refused to consider other jobs within the hospital. Finally, when the time came for the nurse to resume night-shift work, she refused to do the night-shift work and was discharged. The nurse then sued the hospital and claimed that she was entitled to the reasonable accommodation of being assigned to a days-only schedule on a permanent basis. The Court held that the shift rotation requirement was an essential function of the nurse's job (because it was necessary for adequate staffing of the maternity ward, which operated 24 hours per day) and that the hospital was not required to forego that shift rotation requirement. The Court noted that the collective bargaining agreement required shift rotations for all non-senior employees and that the nurse's requested accommodation, if implemented, would have burdened other employees with a requirement to work more unfavorable night and evening shifts. The Court rejected the nurse's argument that because the hospital temporarily accommodated her disability with a days-only assignment, the hospital was required to make that accommodation to her permanently. The Court said: "An employer does not concede that a job function is 'non-essential' simply by voluntarily assuming the limited burden associated with a temporary accommodation, nor thereby acknowledge that the burden associated with a permanent accommodation would not be unduly onerous."

     3. The Soto-Ocasio Case: Request For "Light Duty" Reallocation Of Job Duties Denied.

     In Soto-Ocasio v. Federal Express Corp., 150 F.3d 14 (1st Cir. 7/16/98), an employee who had worked full-time and performed office clerical duties, including some time-critical data entry duties, became substantially disabled from injuries she suffered in a car accident. The employee went out of work and applied for and received total disability benefits. After the employee had been out of work for over a year, and while she was still receiving total disability benefits, the employee requested to return to work with a reasonable accommodation of "light duty." She initially was vague about the nature of the "light duty" she could perform, but she ultimately specified her request as "working four hours per day, with reasonable accommodations, and distributing some of her job functions among existing staff in her absence." Doctors who examined the employee placed various substantial lifting, standing, bending, sitting, and other restrictions on her activities. The Court held that the employee was not entitled to the accommodation she requested because her accommodation request amounted to nothing less than a request that the employer completely reallocate her job duties. The Court said: "The law is clear that reallocation of job duties constitutes a change in the essential functions of the employee's job and therefore is not required under the ADA. But reallocating duties is precisely what Federal Express would have had to do in order to comply with [the employee's] request. [The employee's] job required her to enter substantial amounts of data into a computer, which, according to [the employee's] own deposition testimony, required up to six to nine hours per day. The time-sensitive nature of [the employee's] work meant that if [the employee] could not enter all of the data, the company would have had to allocate other employees to complete the work. Because reallocation of job functions exceeds the scope of reasonable accommodation, it follows that Federal Express was not required under the ADA to permit [the employee] to resume her job."

     4. The Feliciano Case: Request For Ineffective Lifting Assistance Denied.

     In Feliciano v. State of Rhode Island, 160 F.3d 780 (1st Cir. 11/18/98), an institutional attendant (CNA) in a hospital suffered several work-related back injuries which left her with permanent lifting, bending, walking, standing, and other restrictions. After an extended absence from work, the employee sought to return to her job. The employee claimed that she could perform the less strenuous functions of her job (such as bathing and dressing patients) without any accommodations, and that she could perform the more strenuous aspects of her job with reasonable accommodations such as a power Hoyer lift and help from other available attendants. The hospital offered the employee her old job without any accommodations, which she refused, and she was then discharged for failing to return to work. The employee sued for disability discrimination. The Court rejected the employee's claim. The evidence showed that although the employee could do some of the essential functions of her job, she could not do all the essential functions of her job, with or without a reasonable accommodation. For example, although a power lift would enable the employee to perform certain essential functions (such as transfer and lifting of patients) without the help of another employee most of the time, it would not always be effective as to those functions (sometimes patients would not be able to position themselves on the lift), and it would not enable the employee to perform certain other essential functions (such as walking and exercising the "incapacitated patients") at all. Also, the evidence showed that other employees would not always or perhaps even often be available to help the employee with the tasks she could not perform alone. The Court summarized: "At best, [the employee's] testimony consists of unsupported conclusions and bald assertions that she could perform most of the essential functions of the position with the help of another [attendant] and a power Hoyer lift. These assertions are belied by [the employee's] own experience with such assistance [the employee had testified to several problems she had experienced even while being helped by another attendant], by the reality that such assistance is not always available, and by the inability of such lifting assistance to help [the employee] perform other essential tasks, such as walking and exercising patients."

     The employee also claimed that the hospital had unlawfully failed to reassign her to a vacant position she could perform, such as a receptionist, ward aide, or community living aide position. The Court agreed that a reasonable accommodation may include reassignment to a vacant position that the employee could perform, but the Court ruled the employee's claims were not valid. With regard to the receptionist and community living aide positions, the Court found that the employee had simply failed to prove any such vacant positions were available. With regard to the ward aide position, the Court ruled first that the employee had failed to prove she applied for or sought that position, and second that any available ward clerk position could only be filled by seniority under a union contract, and the ADA did not require the employer to violate the union contract.

     5. The Tardie Case: Request For Substantial Reduction In Regular Hours Denied.

     In Tardie v. Rehabilitation Hospital of Rhode Island, -- F.3d -- (1st Cir. 2/24/99), the claimant was a hospital's human resources manager. Before she became ill, the employee worked fifty to seventy hours per week, in part because she had to cover all three shifts worked by the hospital's employees. The employee suffered a heart ailment which caused her to take a medical leave of absence. At the end of her scheduled leave, she wanted to return to her HR manager position, starting with part-time work and building up to forty hours per week, but because of her heart condition she could no longer work more than forty hours per week. She requested that she be allowed to work in the HR manager position for only forty hours per week, but the hospital determined that the job could not be done in forty hours per week and refused her request. The Court ruled that in fact an essential function of the HR manager position was working fifty to seventy hours per week. With regard to the employee's request to work only a 40-hour week, the Court said: "The accommodation sought by [the employee] was unreasonable as a matter of law. Working more than forty hours per week is an essential function of her position. [Her] request to work only forty hours per week was a request to eliminate this essential function. We [hold] that an employer need not accommodate a disability by foregoing an essential function of the job."

     6. Comment On The Permanent Accommodation Cases.

     Obviously, it is crystal clear from these cases that an employer's duty to reasonably accommodate a disabled employee does not require the employer to permanently eliminate, forego, or ignore an essential function of the employee's job. Thus, the big differences between a permanent accommodation and a temporary accommodation are these: first, an employer may be required to temporarily but not permanently waive an essential job function, and second, a temporary accommodation need not necessarily be extended to, and does not by itself justify, a permanent accommodation.

     It is also clear from these cases that we are still in the "early years" of ADA litigation, when many of the ADA's provisions are not yet well understood. This is why employees and their attorneys assert claims for alleged reasonable accommodations which turn out to be fairly obvious claims for the elimination of essential job functions, and why such claims are extensively litigated all the way to federal courts of appeals. Hopefully, as court decisions rejecting invalid reasonable accommodation requests accumulate over the years, such invalid reasonable accommodation claims will become less common.

     Meanwhile, an employer can try to avoid reasonable accommodation discrimination claims (1) by trying to at least temporarily accommodate a disabled employee, and (2) by clearly and consistently documenting the essential functions of the employer's job positions. The ADA provides that "consideration shall be given to the employer's judgment as to what functions of a job are essential, and if an employer has prepared a written description, this description shall be considered evidence of the essential functions of the job." The courts have taken this admonition to heart. Employers should do likewise and implement proper written job descriptions.

DISCLAIMER: All information is provided for educational or promotional purposes only and not as legal advice on a particular matter. The information is provided AS IS with no warranties of accuracy, completeness, merchantability, or fitness for a particular purpose. Providing this information DOES NOT create an attorney-client relationship between Lawrence C. Winger, Esq. and the reader. All information is Copyright (c) Lawrence C. Winger, Esq. 2000 All Rights Reserved.

Dated: February, 2000
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