ADA Accommodations Are Kind of Like Dating: Communication Is Key


Kathy Gurchiek By Kathy Gurchiek March 13, 2018
ADA Accommodations Are Kind of Like Dating: Communication Is Key

​Think of it like speed dating, but with employers and court cases: In 90 minutes, attorney Eric B. Meyer, a partner at FisherBroyles law firm in Atlanta, presented overviews of 20 accommodation-related legal decisions to a room packed with HR professionals.

The session at the 2018 Society for Human Resource Management (SHRM) Employment Law & Legislative Conference featured lessons learned in cases in which employers won—and lost—lawsuits involving reasonable accommodation under the Americans with Disabilities Act (ADA). Here are some of the cases he talked about:

Regular Attendance as an Essential Job Function

EEOC v. Ford Motor Co., 782 F. 3d 753 (6th Circuit) 

Many jobs require attendance as an essential function of the job, Meyer noted, and a case in point involved the Ford Motor Co. in 2015.

An employee with irritable bowel syndrome wanted to work from home four days per week to accommodate her medical issue. However, she worked in sales and was part of a team, making her attendance key to her job, Meyer explained. Her employer moved her office closer to the bathroom, but the employee found that to be an unsatisfactory accommodation.

The court held that telecommuting four days a week was not a reasonable accommodation when regular and predictable onsite job attendance was an essential function of her job, and Ford won the case.

Meyer suggested that HR professionals include in job descriptions—where it is warranted—that attendance is an essential part of the job function.

[SHRM members-only form: ADA—Accommodation Medical Certification]

Inflexible Maximum-Leave Policies

EEOC v. ValleyLife, 2017 WL 227878 (D. Ariz. 2017)

ValleyLife, an Arizona company that provides programs and services to people with disabilities in the Phoenix area, fired four of its disabled employees who needed time off because of a disability but who had either exhausted their Family and Medical Leave Act (FMLA) time off or were not yet eligible for leave. The Equal Employment Opportunity Commission (EEOC) argued that the employer had violated the ADA by using an inflexible leave policy that screened out people with disabilities, which had a discriminatory effect on such individuals. One employee who needed surgery but had exhausted his FMLA leave was forced out of his job, according to the EEOC.

"Be mindful of those inflexible maximum-leave policies," Meyer warned. If someone needs a few extra days beyond what he or she has already used, "those extra days trump your [paid time off] policy.

"When you have this seemingly inflexible [policy] that affects many employees, that's when the EEOC jumps in," he said. The EEOC is looking for systemic violations, and, in this case, the court agreed with the EEOC.

Breakdown of the Interactive Process

Keith v. County of Oakland, 703 F.3d 918 (6th Cir. 2013)

Meyer pointed to a court case involving a teenager who was deaf as an example to employers to communicate with workers with disabilities and involve them in the interactive process.

The teen had passed the county's lifeguard certification course, and the county offered him a position as lifeguard. It revoked the offer after a doctor said the teen, because of his hearing impairment, could perform the job duties only if he was constantly accommodated. But what accommodations did he really need?

Being a lifeguard at a pool "isn't like an episode of 'Baywatch,' " where a potential drowning victim is yelling for help, Meyer pointed out. "When you're drowning, you're not yelling. You can't talk."

The county sought a second medical opinion and had a consultant create a safety protocol, which included having an interpreter for the teen—who used American Sign Language to communicate—when he attended staff meetings, using a whistle to communicate with swimmers and carrying laminated cards to communicate with guests in nonemergency situations. However, without a 100 percent guarantee that the proposed accommodations would always be effective, the county would not reconsider its decision to revoke the job offer.

There has been no final ruling on the case. It's important to be proactive, not reactive, he said. The youth, who has been deaf since birth, has a cochlear implant that allows him to detect loud noises. Meyer thinks the county erred by not permitting him to explain his abilities and physical limitations or propose solutions. 

"[He] could have been a pretty good hire," Meyer said.

Undue Hardship

Bender v. Norfolk Southern Corp., 31 F.Supp.3d 659 (M.D. Pa., 2014)

A train conductor who had Type I diabetes requested an accommodation of three daily meal breaks. However, the Norfolk railway maintained that doing so would disrupt the train schedule and the ability of other employees to do their jobs, causing an undue hardship on the employer. The employer denied the employee's request and the court ruled in its favor.

" 'Undue hardship' is [decided] on a case-by-case basis," Meyer said. If an employer denies an accommodation request because it would cause an undue hardship, it needs to be able to back up that claim.

HR associate Stephanie Tabor Cloninger, who works at NAFSA: Association of International Educators in Washington, D.C., took a lot of notes during Meyer's presentation.

"It was very good to see how murky a [workplace] situation can be, and some best practices," such as talking with the employee to see if an accommodation can be made that works for both parties "… and [taking] care of the situation before you reach litigation." 

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