In previous posts, I address preliminary responses to “Greg”, who suggests that a medical condition is adversely affecting his ability to do his job, and the employer’s efforts to obtain medical information. In this post, I’ll address reasonable accommodations.
Greg’s doctor confirms that Greg has a significant impairment and recommends that he not perform certain job duties for at least 12 weeks.
Does it matter whether the duties Greg cannot perform are “essential” or “marginal”? Yes. The ADA does not require employers to remove “essential” job functions as a reasonable accommodation. An “essential” job function is fundamental to the position. Factors to consider in determining whether a function is essential include whether the job exists to perform the function, the number of employees who could perform the function, time spent performing the function, what would happen if the employee did not perform the function, and the terms of a collective bargaining agreement or other contract. Employers may have to remove marginal, or non-essential, job functions as a reasonable accommodation.
What should I consider when determining if we can provide accommodations? Some tips when going through the ADA “interactive process” with Greg follow:
- Do not follow a “one size fits all” approach of offering only certain accommodations for specific impairments. The same medical diagnosis may affect different individuals in different ways. Focus on Greg’s unique needs.
- Focus on accommodations that would enable Greg to safely and effectively do his job. Accommodations solely for personal reasons need not be considered under the ADA.
- Consider low-cost accommodations before moving on to more expensive solutions. Think “effective” rather than “expensive.”
- The ADA does not require the reassignment or removal of essential job functions (fundamental duties of the position). You may have to reassign or remove marginal job functions.
- Even if Greg is not covered by the FMLA, you may have to consider unpaid, job-protected leave as a reasonable accommodation.
- The ADA generally does not require you to lower performance/production standards applied uniformly to all employees in Greg’s job. You may have to provide a reasonable accommodation that would help Greg meet your standards. Think “helping meet the bar” rather than “lowering the bar.”
- Before declining to provide an accommodation that would enable Greg to safely perform the job’s essential functions, determine whether doing so would cause undue hardship. “Undue hardship” means significant difficulty or expense and focuses on the employer’s resources, other resources available to the employer (for example, from advocacy groups or tax credits), and other circumstances in relation to the cost or difficulty of providing a specific accommodation. If you claim undue hardship based on cost, you may have to “open the books” in litigation to defend that position.
- If you and Greg cannot come up with an effective reasonable accommodation on your own, consult with supervisors and managers familiar with the position regarding possible accommodations for the limitations at issue (without disclosing Greg’s underlying medical information). If you still cannot come up with an effective accommodation, consider contacting the Job Accommodation Network (800-526-7234 or askjan.org) for help in identifying accommodations.
Who picks among alternative accommodations? Although it can be less confrontational to defer to Greg, the employer chooses among effective accommodations.
We’ve come up with an idea. Should I follow up with Greg’s doctor? If you and Greg come up with a reasonable accommodation but are not sure whether it will comply with Greg’s restrictions, ask his doctor.
HR, Greg, and Greg’s doctor conclude that no accommodation would enable Greg to safely perform his essential job functions now.
Should we consider “light duty”? The ADA does not require employers to offer light duty that involves removal of essential job functions (but check applicable state law). Even if not required, if you decide to offer Greg light duty, have Greg sign an acknowledgement that the offer of light duty is temporary to avoid arguments that you permanently removed essential functions from Greg’s job.
Should HR consider offering Greg a leave of absence? If Greg is eligible for and qualifies for FMLA leave, offer it. If the FMLA does not apply, remember that a potential accommodation under the ADA is unpaid leave. Therefore, even if your policies “cap” the amount of leave, the ADA may require you to modify your leave policies as an accommodation. The EEOC’s position, and the position of some courts, is that employers must offer unpaid leave until they can prove that doing so causes undue hardship. Some courts have ruled that indefinite leave is not required. In the Seventh Circuit (Indiana, Illinois, Wisconsin), the U.S. Court of Appeals has ruled that multi-month leaves of absence are not required by the ADA. You should check the law in the state where Greg works to be sure whether and to what extent you might have to offer unpaid leave as an accommodation.
Do we have to grant a leave of absence if we can think of a way to accommodate Greg so that he can continue working? It depends. If Greg’s medical condition is a “serious health condition” for purposes of the FMLA and Greg is eligible for and wants to take FMLA leave, you must allow him to do so. If the FMLA is not at issue, you might have the option of requiring Greg to accept an accommodation that enables him to work instead of offering him leave.
If I offer a leave of absence as an accommodation, do I have to hold Greg’s job? If the accommodation is a leave of absence, in most cases you must reinstate Greg to his old job at the conclusion of the leave (assuming he can safely perform the essential functions of that job, with or without reasonable accommodation). Unlike the FMLA, the ADA does not contemplate returning the employee to “an equivalent” position.
What if Greg first becomes eligible for FMLA leave during leave offered as a reasonable accommodation? It is not uncommon for employers to offer unpaid leave as an accommodation before an employee becomes eligible for FMLA leave. If, during the “accommodation leave,” Greg becomes eligible for FMLA leave, and if the reason for the leave is FMLA-qualifying, Greg should be offered FMLA leave.
What if Greg asks for extensions of leave? Under both the ADA and the FMLA, the employer may require Greg to provide documentation that supports his request for an extension of leave. Keep an eye on it. Depending on how many extensions are requested, you might be able to consider it a request for indefinite leave, which might not be required if/once the FMLA no longer is at issue.
Should HR consider reassignment? If Greg cannot perform the essential functions of his job, with or without reasonable accommodation, when all leave options are exhausted, reassignment to a vacant position should be evaluated prior to making a decision to terminate.
- Is bumping someone out of their job required? Not under the ADA.
- May seniority systems be honored? In many cases, yes.
- Must Greg be the most qualified, or just minimally qualified? When reassignment is the reasonable accommodation, the ADA has generally been construed to require an employer to reassign the employee with a disability if he or she is minimally qualified for the vacant position. This means that simply allowing Greg to compete is not enough. It also means that you might have to place Greg in the vacant position even if he is not the most qualified candidate.
- Must the employer continue to accommodate Greg in the new position? Yes, the obligation to provide reasonable accommodations is a continuing obligation.
There is no accommodation that would enable Greg to work, and we have no vacancies. We plan to terminate Greg.
How should I communicate the termination? Sometimes an employer has no choice but to part ways with an employee with a disability who no longer can perform the essential functions of the job, with or without reasonable accommodation. To reduce the risk of Greg perceiving that he was treated unfairly, remind him of each other’s efforts to salvage the relationship (brainstorming potential accommodations, granting a leave of absence, and consideration of reassignment). Clarify your understanding of the situation (i.e., that Greg no longer is able to perform the essential functions of his job, with or without reasonable accommodation, and there is no information to suggest that will change). Allow Greg to correct any misunderstanding. Let Greg know that he is welcome to reapply for future vacancies.
(This post is not legal advice. Consider consulting with a lawyer about any specific situation)