Don't forget the 'reasonable' in reasonable accommodations

Since the ADA Amendments Act (ADAAA) went into effect in 2009, it's rarely ever necessary for a court to consider whether an employee is "disabled" for purposes of the Americans with Disabilities Act (ADA). Even seemingly minor conditions such as migraine headaches, anxiety, and high blood pressure are now considered disabilities under the amended law. As a result, courts have shifted their focus from the employee's condition to whether the employer complied with its obligation to provide a reasonable accommodation that would allow the disabled employee to perform the essential functions of his job.

That shift in focus — from the employee to the employer — makes it all the more important for employers to identify and properly respond to accommodation requests, as two recent decisions in Massachusetts demonstrate.

Accommodations for autoimmune disease?

From 2005 to 2010, Jeanne Hochstetler worked as a technical writer for a software company that was ultimately acquired by IBM. Hochstetler has Sjögren's syndrome, an autoimmune disease characterized by chronic fatigue and painful swollen joints. She claims the disease causes her to have difficulty bending, climbing stairs, typing, standing, and driving. To combat those symptoms, she takes daily medication, but according to the lawsuit, the medicine wears off sometime after 5:00 p.m., and her doctor has advised her against taking a second dose.

In early 2009, Hochstetler was asked to set 12 goals for the upcoming year. She claims she informed her supervisors that because of her disability, she couldn't accomplish all 12 goals in a standard 45-hour workweek. Hochstetler says she was told that she would be expected to work as many as 70 hours per week if necessary to complete her goals and that IBM's HR department would have to authorize any reduction in her hours.

Following that conversation, Hochstetler submitted a doctor's note to the HR department requesting that she be permitted to work no more than 45 hours per week. IBM approved the request for back-to-back six-month periods, but Hochstetler claims that when she asked that her performance goals also be reduced, IBM instead increased her workload by giving her new time-consuming tasks.

In February 2010, following a series of weak performance reviews, Hochstetler was one of 70 employees selected for layoff. She filed a charge of discrimination with the Massachusetts Commission Against Discrimination (MCAD) claiming that IBM failed to accommodate her disability and discriminated against her on the basis of her disability and her age. She then withdrew the charge and filed suit in court. IBM filed a motion asking the court to enter judgment in its favor before trial.

The trial court judge dismissed Hochstetler's age and disability discrimination claims but allowed the reasonable accommodation claim to proceed to trial. According to the judge, a jury could conclude that IBM's agreement to reduce her hours was a failure to accommodate because it was coupled with a refusal to decrease her workload.

The decision means that a jury will now decide whether a reduction in Hochstetler's workload would have enabled her to perform the essential functions of her position and whether such a reduction would have been a reasonable accommodation for IBM to make under the circumstances. Hochstetler v. IBM (Mass. App. Ct., 2013).

No 'one size fits all'!

So what is a reasonable accommodation? There's no "one-size-fits-all" definition. What may be reasonable in one situation may be unreasonable in another, and vice versa — it all depends on the specific facts and circumstances. Sometimes the employee's needs are obvious, but when an employee is unable to articulate precisely what she needs to continue to perform the essential functions of her job, and to enjoy the benefits of that job, you can't just shrug your shoulders.

The ADAAA requires employers to engage in a meaningful dialogue, consider which of the employee's job functions are the "essential" ones, think creatively about ways to accommodate the employee, and implement any accommodations that don't constitute an "undue hardship." That may require you to make existing facilities more accessible, restructure the employee's duties and responsibilities, modify the employee's schedule, or acquire new equipment. You should also consider whether you can reassign the employee to a vacant position for which she is qualified if she is no longer able to do her current job because of a disability.

What do you need to know?

Now that you have an idea of what it means to make a "reasonable accommodation," consider what IBM could have done differently to avoid a trial. If you believe Hochstetler's account of what happened, the company could have taken a more active role in the interactive process. Most important, it could have recognized her initial request for a reduced schedule as a request for an ADAAA accommodation and used it as a springboard to open a dialogue about how her symptoms were affecting her ability to do her job.

Had it done that, IBM might have better understood Hochstetler's concerns about her ability to accomplish the tasks that had been set for her. And with that understanding, the company might have been in a better position to discuss her goals for the year and perhaps could have worked with her to determine which goals defined the essential functions of her job. It might have turned out that she couldn't perform the essential functions of her job even with a reduced schedule. Or IBM could have discovered that only nonessential goals would be compromised by the change in hours. Unfortunately, however, it seems that conversation didn't occur, and it will now be up to a jury to decide something IBM and its employee might have been able to resolve internally.

Of course, it's impossible to predict what would have happened, but when it comes to the ADAAA, merely having the conversation goes a long way toward satisfying your obligations to your employees. Another recent Massachusetts decision proves that point.

Accommodations for IBS?

Lance Silvestris teaches English at Tantasqua Regional Senior High School in Fiskdale. He suffers from irritable bowel syndrome (IBS), and in 2009, he requested an accommodation that would allow him to use the restroom at unexpected times throughout the day. In consultation with him, the school developed and implemented three different plans to try to accommodate his needs.

Initially, the school allowed Silvestris to call upon teachers in adjoining classrooms to cover his class for him when he needed to take a bathroom break. However, Silvestris felt embarrassed and self-conscious about revealing his disability to his colleagues and having to ask them to cover his class. The school then provided him with a dedicated substitute teacher who was assigned to cover his classroom during his breaks and moved him into a bigger classroom to make the substitute less conspicuous.

Silvestris still wasn't satisfied, however, saying the presence of the substitute created questions and remained a source of embarrassment for him. The school then returned him to his original classroom and reinstated the first plan but added aides to assist the other teachers in providing coverage when he needed to leave. Despite those efforts, he filed suit, claiming that the school failed to accommodate his disability and caused him emotional distress.

The trial court dismissed Silvestris' lawsuit before trial, and the Massachusetts Appeals Court recently affirmed that decision. Pointing to the fact that the school offered him three separate accommodation plans, the appeals court concluded it wouldn't be possible for a jury to find that the school either refused to provide him with a reasonable accommodation or failed to engage in the interactive process. The court reasoned that school officials addressed his initial request for accommodation promptly, and when problems arose, the school showed that it was willing to work with him to find a solution. Silvestris v. Tantasqua Senior Regional High School (Mass. App. Ct., 2013).

Keep the dialogue open, and try to be flexible

So the next time one of your employees mentions a physical, mental, or emotional impairment, think about Hochstetler and Silvestris. Your employee may not always qualify as disabled, and even if he does, there may be no reasonable accommodation, but you can greatly reduce your risk merely by having an honest conversation, keeping an open mind about ways to help the employee overcome work-related challenges, and leaving the lines of communication open. If you need some guidance on the accommodation process, check with your labor and employment counsel.

Erica E. Flores is an associate at the firm of Skoler, Abbott & Presser, P.C. She can be reached at 413-737-4753 or eflores@skoler-abbott.com .

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