Federal Courts Clarify Reasonable-Accommodation Standards
The extent of an employer’s duty to reasonably accommodate an employee with a disability under the Americans with Disabilities Act (ADA) is not always clear. Indeed, when the requested accommodation involves a leave of absence or the transfer to a different position, employers are often unsure what the law requires of them. A series of recent decisions from the Seventh and Tenth Circuits, however, have addressed the limitations and obligations facing employers presented with such requests for accommodation.
Leaves of Absence as a Reasonable Accommodation
Few questions vex employers more than what length of time is reasonable when a disabled employee requests a leave of absence. The United States Court of Appeals for the Tenth Circuit (Colorado, Kansas, Oklahoma), in Robert v. Board of County Commissioners of Brown County, 691 F. 3d 1211 (10th Cir. 2012), has shed some light on this issue that should help employers in deciding how to respond to employee leave requests under the ADA. The plaintiff, Ms. Robert, worked for Brown County supervising felony offenders. The essential functions of her job required that she perform many duties outside of her office such as performing drug screenings, ensuring compliance with court orders, testifying in court, and other “considerable fieldwork” including site visits under potentially dangerous circumstances. Robert was diagnosed with sacroiliac joint dysfunction, and because of severe pain in her back and hips eventually she could work only from home. Thus, she was unable to visit offenders, supervise drug and alcohol screenings or testify in court.
Following a surgery to treat her joint dysfunction, Robert exhausted her FMLA and sick and vacation leaves, but she still could not return to work. Neither she nor her doctor informed her employer as to when she could resume her job duties. Since she could not perform her job duties, the County terminated Robert’s employment. Among other claims, Robert alleged that her termination constituted discrimination under the ADA. The court disagreed. The court accepted that site visits and other out-of-office work were essential functions of Robert’s employment, but it stated that she would still be qualified to perform her job if she could have performed those duties with reasonable accommodation. The only possible reasonable accommodation in this case, however, would have been a leave of absence.
The court noted that there are two limits on the bounds of reasonableness for a leave of absence: (1) the employee must provide the employer an estimated date for when she can resume her essential duties, and (2) the leave request must assure the employer that the employee can perform the essential functions of her position in the “near future.” Though the court did not define “near future,” it cited to a case stating that a six-month leave request was too long to constitute reasonable accommodation. Here, Robert never provided any estimate as to when she could resume her fieldwork. Therefore, the only accommodation that would have allowed Robert to perform the essential functions of her position was an improper indefinite reprieve from her fieldwork functions. Thus, since Robert was not qualified to perform her duties, her discrimination claim failed.
Transfers to a Different Position as a Reasonable Accommodation
On September 7, 2012, the Seventh Circuit in EEOC v. United Airlines overruled two of its prior decisions (EEOC v. Humiston-Keeling (2000) and Mays v. Principi (2002) that together stood for the principle that employers could hire the most qualified applicant for a position, even if that meant passing over a disabled employee seeking the position because his disability precluded him from performing the essential functions of his current position. Going forward, employers in the Seventh Circuit will now be required to offer that vacant position to the disabled employee, unless it can show that doing so creates an undue hardship that renders mandatory reassignment unreasonable.
The dispute in United Airlines centered around a set of “reasonable accommodation” guidelines that the company used when evaluating transfer requests involving disabled employees. United’s guidelines provided that the transfer process was a competitive one, and that employees requesting a transfer as an accommodation would not automatically be placed into qualifying vacant positions. Instead, the disabled employee would receive preferential treatment, which included a “guaranteed” interview for the position and priority over similarly qualified applicants. Under these guidelines, however, a non-disabled applicant would receive the job if he or she was more qualified than a disabled employee seeking the accommodation.
In abandoning the standard it had followed since 2000, the Seventh Circuit concluded that the “ADA does indeed mandate that an employer appoint employees with disabilities to vacant positions for which they are qualified, provided that such accommodations would be ordinarily reasonable and would not present an undue hardship to that employer.” While the existence of a seniority rule mandated by a collective bargaining agreement will likely satisfy the undue-hardship requirement, not all such provisions are created equal, and their language should be parsed before rejecting a transfer request out of hand in such a setting. In the future, employers in the Seventh (and Tenth or Washington, DC) Circuits may no longer rely on a “best applicant” policy when making decisions about transferring disabled employees to vacant positions.
The Employee’s Role in Requesting a Reasonable Accommodation
In yet another noteworthy decision, the Seventh Circuit held that a university was not liable for failing to accommodate a professor’s mental disorder, where the university reasonably tried to fulfill a request for office reassignment but the employee did not cooperate. In Hoppe v. Lewis University, 692 F.3d 833 (7th Cir. 2012), Elizabeth Hoppe requested that her office be relocated to accommodate her adjustment disorder. Both the initial letter that Hoppe presented from her doctor and a follow-up letter failed to specify a suitable campus location for Hoppe or the particular stressors that necessitated Hoppe’s relocation. Nevertheless, the university offered Hoppe four different office options, one of which she accepted but never used; she refused the remaining offices because they were in the same building as individuals whom she alleged heightened her anxiety, but her physician never specified a change of buildings or any location information at all. The court emphasized:
An employer can take no solace in its failure to engage in this process in good faith if what results is an unreasonable or inappropriate accommodation offer. And an employee who fails to uphold her end of the bargain – for example, by not “clarifying the extent of her medical restrictions” – cannot impose liability on the employer for its failure to provide a reasonable accommodation.
In finding in favor of the university, the Seventh Circuit noted that the university offered Hoppe several options to change offices, despite having no specific details from her doctor about what steps were necessary to reasonably accommodate her disability. Further, the university had asked Hoppe’s doctor for specific information several times, to no avail. Therefore, the university did its part to participate in good faith in the ADA-required interactive process, and there was no evidence it did not offer Hoppe a reasonable accommodation.
Lessons for Employers
First, these cases emphasize that an employer need not shoulder the entire burden when trying to reasonably accommodate an employee with a disability; the employee has responsibilities as well. As noted in Hoppe, an employer need not offer an employee the precise accommodation he or she requests, if the employee does not clarify the extent of his or her medical restrictions. The employer must participate in good faith in an interactive process under the ADA to find a reasonable accommodation, but the employer’s obligation runs only so far. If an employee’s physician does not specify the employee’s restrictions or what type of accommodation is necessary, following up with the physician and working with the employee to find alternative options should protect an employer from liability if the employee later argues that the offered accommodations were unreasonable.
Second, an employer is not required to provide an open-ended leave of absence if an employee requests such an absence as an accommodation. Under Robert’s analysis, an indefinite absence, especially when there is no assurance that the employee will be able to perform the essential functions of his or her position, is unreasonable as a matter of law. Under these circumstances, once an employee has exhausted other types of leave, if she cannot provide an estimate of when she can resume the essential duties of her position, a court is likely to uphold an employer’s decision to terminate her. The employee does not need to return to work at full capacity, but the employee must be able to perform the duties of her position with reasonable accommodation under the ADA.
Third, employers in the Seventh Circuit must now reassign qualified disabled employees who can no longer perform their original jobs to vacant positions, unless the employer can establish the existence of special circumstances that demonstrate undue hardship. While the seniority provisions of a collective bargaining agreement should satisfy this requirement, it remains to be seen what other special circumstances will suffice going forward. Employers should vigorously explore the possibility of reassignment with disabled employees and be sure that any positions discussed with and/or offered to the employee are documented.
Finally, these cases further emphasize the importance of detailed job descriptions. With or without accommodation, an employee must be able to perform the essential functions of his or her job. If the employer can pinpoint the essential functions of a job, both the employer and the employee will have an easier time engaging in the required interactive process for establishing reasonable accommodations. Further, in the event an employee cannot perform the essential functions of a job, an employer is further protected in a lawsuit if it has articulated the essential functions of a position ahead of time.If you have any questions about this article or the ADA in general, please contact Alan Koral at +1 (212) 407 7750, Andrea Lewis at +1 (312) 609 7739, or any other Vedder Price attorney with whom you have worked.
 Id. at 840 (citations omitted)