THINKING OUTSIDE THE BOX WITH REASONABLE ACCOMMODATIONS
The EEOC has stated in no uncertain terms that reasonable accommodation should be the new focus for employers of individuals with disabilities. In fact, an update to the EEOC guidance on reasonable accommodation was third on the agenda at this week’s Commission meeting, but it was bumped at the last minute. That’s a pretty big indication that employers are going to see an approved guidance in the very near future.
From my perspective, the EEOC’s laser-focus on this issue means that employers are going to have to get creative when it comes to accommodating individuals with disabilities. Under the current definition in the ADAAA, more employees than ever before are considered disabled, but from my point of view, that works somewhat of an injustice to those who truly need the assistance of the ADA to enjoy the full benefits of employment.
This brings me to something which I’ve noticed many employers seem to be overlooking with alarming frequency. Everyone should know by now that a reasonable accommodation should be offered to enable a qualified individual with a disability to perform the essential functions of his or her job. The ADA also requires accommodations that allow those individuals “to enjoy equal benefits and privileges of employment as are enjoyed by its other similarly situated employees without disabilities” Some examples of cases that have worked through the court system under this prong demonstrate why employers need to start thinking outside the box when it comes to engaging in the interactive process of accommodation.
In a case out of Montana, a disabled employee used a service animal to brace her while she walked, to stimulate her when the dog sensed that a dissociative episode was coming on, and to alleviate her depression. The dog, while trained to walk on tile floors and slippery surfaces, was not able to maintain traction on the employer’s floors – through no fault of the dog. The employee requested that her employer accommodate her by providing nonskid floor coverings for the areas of the workplace her job required her to use. The employer argued that it was not required to accommodate the employee’s dog, just her, and she had no trouble doing the essential functions of her job. The appellate court disagreed, noting that the use of a service animal is no different from the use of any other assistive device. For instance, installing ramps for the use of a wheelchair is not substantively different from installing nonskid flooring for the use of a service animal. And, while the employee was capable of doing her job, she was not getting to enjoy equal benefits and privileges of employment as other employees moving around the building.
In a case last month out of Illinois, an employee suffering from panic disorder and generalized anxiety disorder experienced increased anxiety when his supervisor changed. Among the accommodations he requested was the ability to work from home for a period of time. Obviously, this accommodation would not be reasonable for many employers, but this particular one could make this accommodation and had for others in the employee’s position. Nevertheless, it argued that the accommodation was not medically necessary as the employee was capable of performing his job. The court determined that this was not the appropriate inquiry; rather, the question was whether the employee had to work from home so that he could be free from levels of stress not experienced by other employees – in other words, so that he could similarly “enjoy” his employment.
In another case, an employee with degenerative joint disease requested an electric door for access to the workplace. While she was capable of doing her job and could open the door, just with difficulty, the court found that the right to enjoy the benefits of employment equally required the employer to make it less of a struggle for her to enter the building by installing an electric door. The struggle exacerbated the employee’s condition, and that was a key factor considered by the court.
Each one of these examples reiterates that it is important for employers to evaluate accommodation requests on a highly individualized basis, but they go further than that. They also illustrate that employers need to think about accommodations not just in a traditional sense, but in terms of whether employees with disabilities are being deprived of equal entitlements in the workplace – even those which may not be related or connected to their day-to-day work functions.
I hope we see some sound guidance coming from the EEOC in the near future, but I fear its position on indefinite leave as an accommodation – something else that was on the agenda this week – is going to be rough on employers. While we wait for that with baited breath, I’d like for you to share with us your interesting experiences and/or creative solutions to requests for reasonable accommodation. To the right of this column, you’ll see a box with a link taking you to the contest page where you can share your reasonable accommodation stories and perhaps win a little swag for your effort. I hope to hear from you!