By Mauro Ramirez, Partner, Fisher Phillips
Healthcare employers increasingly have become targeted by claims under the Americans with Disabilities Act (ADA). Under the ADA, an employer’s fundamental obligation is to provide “reasonable accommodations” to “qualified disabled employees” that enable them to perform the “essential functions of their jobs.” Each quoted phrase carries a specific and, often, seemingly complicated meaning. However, the key question remains simply stated: What must a healthcare employer do to accommodate an employee’s needs while ensuring patients receive the care they deserve?
Three recent cases applicable to Texas employers provide helpful guidance.
1. First, identify the essential functions of the job:
From the ADA’s perspective, decisions should focus on whether a disabled employee is “qualified.” A “qualified” individual is one who satisfies the requisite skill, experience, education and other job-related requirements of the position and who, with or without reasonable accommodation, can perform the essential functions of the position.
Thus, ADA compliance begins with an employer first identifying the essential functions of a position. If an individual can perform these functions, with or without a reasonable accommodation, he is protected from adverse action because of a disability. If not, the employee is not protected under the ADA.
Courts take into account an employer’s judgment as to the essential functions and evaluate written materials and underlying practices. Often, therefore, the pertinent job description serves as a key piece of evidence.
For example, in recent case in the Southern District of Texas, the plaintiff sued his employer for discrimination under the ADA. After experiencing various medical issues, the employee, who was a delivery driver, presented medical restrictions indicating that he “could not work overtime.” The employer determined that it could not accommodate this restriction and terminated the individual’s employment.
After the plaintiff filed suit, the employer argued that it had not violated the ADA because the employee could not perform an essential function – work overtime – with or without a reasonable accommodation. The court agreed. The written job description clearly stated that the position necessitated working overtime. In addition, the court noted that other delivery drivers in the plaintiff’s position and location frequently worked overtime.
The employer, therefore, clearly identified the essential function in the job description, and the job description was consistent with the real-life circumstances of the position.
2. Listen and consider an employee’s accommodation requests:
An employer does not have to provide a reasonable accommodation that would cause an “undue hardship.” Undue hardship is defined as an action requiring significant difficulty or expense when considered in light of factors such as an organization’s size, financial resources and the nature and structure of its operation.
To determine whether an accommodation is reasonable, an employer must engage in an “interactive process” and thoughtful “individualized” assessment. Importantly, this assessment encompasses accommodation requests related to essential and non-essential functions of the job.
For example, in a case decided by the 5th Circuit Court of Appeals in October 2018, the plaintiff was visually impaired. Her employer provided multiple accommodations, including a workstation with natural lighting, multiple monitors and magnifying software and equipment. The employee then asked for additional accommodations regarding meetings occurring away from her workstation. She asked that meeting materials be provided in larger font or in advance so she could review them using her magnification equipment. The employer indicated that it would provide these accommodations but never did. The employee sued, alleging the denial of a reasonable accommodation.
On appeal to the 5th Circuit, the employer argued that the requested additional accommodations were not necessary for the employee to effectively participate in meetings. The court disagreed and further noted that an employer must provide a reasonable accommodation even if it is not necessary to perform an essential job function.
Remember, accommodations can take many forms, and even minor or simple requests, when ignored, can turn into serious lawsuits.
3. In reaching a decision, engage in an interactive dialogue with the employee:
The ADA does not require an employer to provide the exact accommodation requested. Rather, an employer may choose among alternatives, as long as the chosen accommodation is effective. The interactive process, therefore, is a two-way street where an employer may offer alternatives.
In a case decided by the 5th Circuit in December 2018, the plaintiff requested an accommodation based on panic attacks caused by driving in heavy traffic. Specifically, she asked to work in the office from 7:00 a.m. to 2:00 p.m. and the remaining work hours from home.
The employer denied the request, as it required work from the office during normal business hours. It did, however, offer to adjust the employee’s schedule from 8:00 a.m. to 5:00 p.m. to 7:00 a.m. to 4:00 p.m. so that she could leave earlier. The employee declined this alternative and, while acknowledging that 2:00 p.m. to 3:00 p.m. was usually a busy time for her department, offered to leave at 11:00 a.m. (purportedly so she would be available to work the busy period from home). She did not propose other alternatives or investigate public transportation or ride-sharing options. Ultimately, the employer terminated the employee for attendance violations, and she sued, in part, for an alleged failure to accommodate.
The 5th Circuit held that the employee could not establish her claim. She had failed to engage in a flexible, interactive discussion regarding an appropriate accommodation – opting to aggressively demand to leave at 2:00 p.m. and then 11:00 a.m. The employer, on the other hand, demonstrated the requisite flexibility in offering to adjust her schedule in a manner that would not unduly burden operations.
Ultimately, an employer must be prepared to adequately explain the reason for denying an accommodation request. In doing so, remain vigilant of the importance of the interactive process. If conducted in a thorough and thoughtful manner – whether an accommodation is granted or denied – an employer should have a reasoned, documented explanation for its actions. In light of such evidence, an employer is much more likely to withstand a subsequent legal challenge.