Part-Time Schedule Was Not Required as Ongoing Accommodation

​Reasonable accommodation issues are an eventual challenge for every HR professional. Dealing with multiple accommodation issues regarding a single employee can be particularly complex. As addressed by the 6th U.S. Circuit Court of Appeals, a diligent employer well-versed in accommodation obligations can avoid legal liabilities and for some positions deny ongoing part-time work as a reasonable accommodation.

Brian Green began work in Fairfield, Ohio, for BakeMark USA in October 2010. He was an operations manager, a position that required significant hours and regular attendance. His responsibilities included close interaction with other employees, overseeing operations and staff, maintaining the condition of the warehouse, and other supervisory duties.

Less than a year after his start, Green requested and was granted a leave of absence to undergo surgery for thyroid cancer. He returned to work without restriction on Oct. 17, 2011. A month later, he requested and was granted another leave of absence due to complications from the medical procedure. Green was placed on leave until Jan. 2, 2012. On Jan. 6, after the expiration of the leave, he provided another doctor's note stating that he needed an additional month of leave. BakeMark granted a leave extension through Feb. 19 and flew in managers from other locations to temporarily cover Green's responsibilities.

[SHRM members-only toolkit: Coordinating Leaves of Absence]

On Feb. 17, Green submitted a doctor's note clearing him to return to work with limited hours. BakeMark met with Green and extended his leave for 30 days in lieu of returning him to work with the restriction. On March 16, Green submitted a note clearing him to return, again with a work hours restriction, but with no defined duration. BakeMark agreed to allow him to work a limited schedule until March 30 or until he submitted clarification on the expected duration of the restriction, whichever came first.

Green returned to work, full duty, on March 30 and continued to work without incident until May 2, 2012. After working a 24-hour shift, he collapsed at home. He submitted a new doctor's note reissuing the work hours restriction. BakeMark advised Green that he could return to work but that they would need to discuss the limitation. Thereafter and at Green's request, BakeMark provided Green's physician with information on the hours he was expected to work. BakeMark attempted to speak with Green by phone, and then by e-mail, to discuss his proposed work hour limitation. He did not respond, which led to a private mediation between the parties. At the mediation, Green stated that he was unable to work and did not know if, or when, he would be able to return. In September 2012, faced with a request for an indefinite leave of absence, BakeMark terminated Green's employment.

Green sued BakeMark for several claims of failing to provide an accommodation under the Americans with Disabilities Act (ADA). A federal district court granted summary judgment in favor of BakeMark. On appeal, the court affirmed the dismissal of Green's lawsuit.

The appeals court noted that full-time attendance was an essential function of Green's job. Based on witness testimony and the job description for the position, the appeals court found that allowing anything less than full-time hours would fundamentally alter the position, which is not required by the ADA. While part-time or flextime schedules can be a reasonable accommodation, the appeals court concluded that they are not required when it is shown that the essential duties of the job cannot be performed within such restricted hours.

Green v. BakeMark USA LLC, 6th Cir., No. 16-3141 (March 27, 2017).

Professional Pointer: ADA compliance can become quickly convoluted when an original accommodation does not fully address a limitation. Careful attention to the obligations, and diligent analysis of each step of the interactive process, is essential to limiting liability exposure. Reliance on the fact that an accommodation was previously provided will not usually be a defense to failing to provide additional accommodations. At the same time, in the face of multiple accommodation scenarios, employers must remain aware of the limits of the ADA so that they can continue to operate their businesses effectively.

Scott M. Wich is an attorney with Clifton Budd & DeMaria LLP in New York City.

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