Additional Leave As A Reasonable Accommodation

Written exclusively for Chubbworks

The U.S. Equal Employment Opportunity Commission (EEOC) sued Keystone RV Co. for allegedly wrongfully terminating an employee with a disability.

The EEOC alleged the employer violated the Americans with Disabilities Act (ADA) by not providing the employee with leave as a reasonable accommodation. The employer allegedly terminated the employee for missing too much work because the employee required surgery to remove large, painful kidney stones caused by a rare condition.

On March 27, 2024, the U.S. District Court for the Northern District of Indiana granted summary judgment to the EEOC. Ginger Christ "Judge: Indiana worker?s firing illustrates why ADA exists" www.hrdive.com (Apr. 02, 2024).

 

Commentary and Checklist

 

Employers must engage in an interactive process with an employee who requests a reasonable accommodation for a disability. In this case, the employee with a kidney disease asked for additional leave time – an exception to the employer's leave policy - to attend to the condition. The employer terminated him, instead of engaging in the interactive process to see if additional leave was a reasonable accommodation.

Although employers may have leave policies, they must be prepared to consider additional leave as a reasonable accommodation in an appropriate case. Every reasonable accommodation is the product of a case-by-case consideration of the essential job functions, the condition employee with a disability, and the potential undue hardship of the employer.

What else should those who evaluate accommodation requests consider?

 

·      Determine whether the employee is covered by the ADA. Employers with 15 or more employees are covered, and state law may apply to employers with fewer than 15 employees

·  Follow your organization's policies and procedures for determining whether reasonable accommodations are to be provided to an employee

·  Take all disability-related accommodation requests seriously and evaluate them on a case-by-case basis

·      Document that the employee has made a request for a disability- related reasonable accommodation, including when and where the request was made and the substance of the request

·  Immediately meet with the employee to engage in an interactive process to discuss the request. This process is a good faith effort by both the employer and employee to discuss limitations a disability may pose and what reasonable accommodations are available

·  Obtain a written medical release from the employee so the employee's healthcare provider will provide information as part of the interactive process

·  Ask for documentation from the employee's healthcare professional as to the nature of the impairment(s), its severity, duration, the activities limited by the impairment(s) and how the impairment(s) limits the employee's ability to perform the job's essential duties or functions

·  Assess whether the employee has a disability under the ADA or the state law definition

o   Under the ADA, a disability is one of the following: a) a physical or mental impairment that substantially limits a major life activity; b) a record of a physical or mental impairment that substantially limited a major life activity; or c) being regarded as having such an impairment. (Note: if this section "c" is the only one that applies, no accommodation is required.)

o   The ADA Amendments Act (ADAAA) identifies medical conditions that would be considered a disability, which include: deafness, blindness, intellectual disability, completely or partially missing limbs, mobility impairments that require the use of a wheelchair, autism, cancer, cerebral palsy, diabetes, epilepsy, HIV or AIDS, multiple sclerosis and muscular dystrophy, major depression, bipolar disorder, post-traumatic stress disorder, obsessive-compulsive disorder, and schizophrenia

o   "Major life activities" include caring for oneself, performing manual tasks, seeing, hearing, eating, sleeping, walking, standing, lifting, bending, speaking, breathing, learning, reading, concentrating, thinking, communicating, and working. Major bodily functions include functions of the immune system; normal cell growth; and digestive, bowel, bladder, neurological, brain, respiratory, circulatory, and endocrine and reproductive functions.

·  If a "mitigating measure," such as medication, medical equipment, devices, prosthetic limbs, or low vision devices eliminates or reduces the symptoms or impact of the impairment, that fact cannot be used in determining if a person meets the definition of having a disability

·  Focus instead on whether the individual would be substantially limited in performing a major life activity without the mitigating measure. Mitigating measures does not apply, however, to those who wear ordinary eyeglasses or contact lenses

·  Evaluate accommodation requests on a case-by-case basis depending on the essential job functions and how the employee's disability affects their ability to perform

·      Continue the interactive process until you find an accommodation that meets the needs of the employee and does not create an undue hardship for the employer

·  Obtain verification from the employee and his or her healthcare provider that the agreed-on accommodation will not worsen the employee's disability

·  Do not use "undue hardship" as an excuse to deny accommodations simply because they would involve some cost or difficulty to implement

o   "Undue hardship" is a limited reason to deny a reasonable accommodation. The EEOC considers not only the cost of the particular accommodation, but also the financial stability of an employer. If an accommodation would be unduly extensive or disruptive, or would fundamentally alter the nature or operation of the job or business, it would not be "reasonable"

o   For example, to provide a special chair at a cost of hundreds of dollars may be an undue burden for a small nonprofit, but it would likely not be viewed as such for a sizeable for-profit employer

·  Once an accommodation has been determined, document it (i.e., what it is, start date, and any other details). Likewise, document any denial of a reasonable accommodation

·  Inform the supervisors and managers of the employee so they can implement the accommodation

·  Maintain all documentation pertaining to the request for reasonable accommodation

·  Should the accommodation not be helpful, managers should be trained to alert those who granted the accommodation so the interactive process may be continued. Sometimes, business needs or the effects of the disability on the employee change, in which case the issue of accommodations may need to be revisited

 

 

 

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