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“If it ain’t broke, don’t fix it:” Take care when modifying existing reasonable accommodations

March 27th, 2014  |  Joy Waltemath

By Joy P. Waltemath, J.D.

As an employer, you may have in place existing disability accommodations that are formal and documented – or informal arrangements, perhaps based on off-the-record discussions between supervisors and employees for which there is no documentation.  Not only is it a good idea for you to audit what kind of formal or informal accommodations your organization has extended, a couple of very recent federal district court decisions suggest that courts are going to scrutinize carefully an employer’s modification of existing accommodations. The question may not be whether the accommodation itself is reasonable, but whether changing it is.

Late start time as accommodation. In Isbell v John Crane, Inc, for over two years, a chemical engineer had – by all accounts successfully – started work at 10:00 a.m. as an accommodation for a psychiatric disorder to allow her morning meds to kick in. She had provided a doctor’s note about her later start time, and when a new supervisor sought a list of employees’ starting times, her working hours were listed as 10 a.m. to 6:30 p.m., but that new supervisor was not informed about the medical reason behind her late start. All lab employees were then informed their work schedule was 8:30 a.m. to 5:00 p.m. The employee requested a renewed accommodation and provided the required medical documentation that she needed a later start time.

In the meantime, however, she was still expected to start work at 8:30 a.m. She had trouble meeting that schedule. Three months after she requested a renewed accommodation, she got a 60-day reprieve allowing her to start work at 9:15, but even that schedule was difficult for her to meet, and for the first time she began accumulating points under her employer’s absence policy. She was also diagnosed with a connective tissue disorder for which she submitted another accommodation request to start at 10 a.m. Her physicians consistently supported her need for a later start time. But the employer told her that the 9:15 a.m. start time would cover the new request and that a 10:00 start time created an “undue hardship.”

Predictably, things went downhill. The employee filed two EEOC charges; her employer requested repeated medical documentation of her disabilities, including an independent medical examination, which indicated that until her symptoms were better controlled, she had “credible psychological justification for starting work somewhat later.” She continued to arrive late to work and accrue attendance points; she received a written warning, final warning, and ultimately was terminated for violating the attendance policy.

Employee already had a “reasonable” accommodation. Both parties focused on “whether a start time of 9:15 a.m. was reasonable,” but this, said the court, missed the point. For over two and a half years the employer had accommodated the employee’s disability by allowing her to begin work at 10:00 a.m. The real question to the court was whether it was reasonable for the employer to withdraw that existing accommodation. The employer provided no evidence that the 10:00 start time was an undue burden and, even if it had, the employer’s obligation under the ADA was to engage in the interactive process with the employee to adjust the accommodation. It could not do so unilaterally to the employee’s detriment.

“Unilateral retraction of pre-existing reasonable accommodation.” Notably, her new supervisor made a decision to impose a uniform schedule without information about the employee’s prior history or disability, even though that information was available to the employer; indeed, it had been for years. This left the court unimpressed with what the employer thought was a reasonable compromise, which the court instead characterized as a “half step backward to a 9:15 a.m. start time.”

Undue burden. Examining the employer’s claim of undue burden more carefully, the court analyzed whether keeping the accommodation created an “undue burden.” The employee had successfully performed her duties for over two years by starting at 10 a.m.; there was no evidence that the employer had been unable to maintain its production schedule or that her schedule had caused any delays. This sudden unilateral change to her schedule, without taking into account her known disability, was an unreasonable failure to continue to accommodate her disability.

Notably, in the preceding case, the court actually granted summary judgment in the employee’s favor on her disability discrimination claims. In a similar case, the employee merely avoided summary judgment on her claims that her employer withdrew its late arrival accommodation for her visual disability.

Late arrival, printed schedule to accommodate visual impairment. White v Golden Corral of Hampton, LLC involved a bakery manager who allegedly asked for – and was granted – an accommodation to arrive to work late because she was visually impaired and had to rely on taxis for transportation. In addition, her manager allegedly agreed to print out her monthly work schedule because she was unable to view images on the computer screen.

Some four years later, something changed, although the parties disputed just what. In any event, from the employer’s perspective, her late arrivals became “frequent and excessive;” from the employee’s perspective, not only had the employer previously not required her to arrive on time for her scheduled shift, but now her lateness had been exacerbated by management discontinuing its practice of printing out her schedule, instead modifying her shift times without telling her.  Coupled with disputes as to the number of times the employee actually was tardy, this was enough for the court to deny the employer’s motion for summary judgment.

Changing existing accommodations can be tricky. From these cases, at least a few suggestions for employers emerge:

  • Know what accommodations your organization is making. Audit what kind of ad hoc arrangements your supervisors may have made, as well as those formalized and documented accommodations that HR has implemented.
  • Don’t let managers unilaterally change accommodation-type arrangements without an HR or legal review. Make sure when you’re reviewing any proposed changes that they don’t actually impair an employee’s ability to perform by removing a reasonable accommodation that is working.
  • If you find, after review, that an accommodation truly needs to be changed, remember the interactive process is your friend.  Your duty as an employer is to engage in that process in good faith, not necessarily to accept an employee’s specifically requested accommodation. But if you haven’t even engaged in the interactive process and instead acted unilaterally, you’ll be at a distinct disadvantage if the matter goes to court.
  • Finally, be especially cautious when a reorganization or personnel changes create new reporting relationships. When a new manager comes in, make sure he or she is apprised of any reasonable accommodations that are in place – sharing this information is permissible under the law.