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Blind hospital dietitian’s request for flexible work schedule was not reasonable

By Wayne D. Garris Jr., J.D.

After becoming legally blind, the dietitian could no longer make the 60-mile drive to work.

The Tenth Circuit affirmed a district court’s judgment that Colorado Plains Medical Center did not violate the ADA when it failed to accommodate a Clinical Dietitian’s request for a reasonable accommodation. After the dietitian became legally blind, she could not longer drive herself to work, a 60-mile trip each way, and could only attend work if someone gave her a ride. She sued after the employer refused to allow her to work a flexible schedule following 15 months of trying. Agreeing with the district court correctly that in-person attendance, on at least a part-time basis, was an essential function of her position, the appeals court held that the dietitian’s accommodation request was not reasonable, as it would allow her to work an unpredictable schedule (Unrein v. PHC-Fort Morgan, Inc., April 8, 2021, Tymkovich, T.).

The Clinical Dietitian at Colorado Plains Medical Center was diagnosed with vitelliform macular dystrophy, which caused her to become legally blind. As a result, she was unable to drive herself to and from work—a 120-mile round trip. The dietitian was only able to attend work if someone was able to give her a ride, and her rides would at times be unavailable or cancelled.

Accommodation request. The dietitian requested an accommodation to work a flexible schedule “to accommodate her transportation.” The hospital granted the accommodation but required the dietitian to notify her supervisor about schedule changes and to work at least 32 hours per week, the majority of which must be on-site at the hospital. Although the hospital tried the flexible schedule for 15 months, the dietitian was unable to establish a regular schedule, received low patient satisfaction scores, and received poor performance evaluations.

Termination. After the dietitian’s flexible schedule arrangement ended, she requested to telecommute full-time. Before the hospital issued its decision, the dietitian’s physician placed her on full-time medical leave for an unrelated condition with an unknown return-to-work date. The dietitian remained on full-time medical leave for seven months; and after she received long-term disability and social security benefits, the employer terminated her. In the termination letter, the hospital explained that the dietitian’s condition could not be “accommodated through telecommuting and irregular and unpredictable presence at the hospital.”

District court. The dietitian filed suit alleging failure to accommodate, failure to engage in the interactive process, and retaliation in violation of the ADA. After a bench trial, the district court entered judgment in favor of the employer finding that physical presence at the hospital is an essential function of the Clinical Dietitian position and that the dietitian could not perform this essential function with or without a reasonable accommodation. The dietitian appealed only her failure to accommodate claim.

Essential function. The dietitian argued that the district court erred in finding a full-time schedule was an essential function of the position. However, the dietitian misstated the district court’s conclusion, which listed several job functions of the Clinical Dietitian position and concluded that the job functions required the dietitian “to be physically present at the hospital for at least four hours per work day and to have a set and predictable schedule to ensure quality patient care.” The district court never stated that a full-time schedule was an essential function. Thus, the court rejected the dietitian’s appellate argument as it was based on a finding that the district court never made.

Reasonable accommodation. Turning to the dietitian’s accommodation request for a flexible schedule, the court found that the accommodation was unreasonable— “both as a matter of law and common sense.” The flexible schedule she had requested would have relieved the dietitian from an essential function of her position because her schedule would be unpredictable. The hospital did not know from day to day whether the dietitian would attend work in-person.

Transportation not hospital’s concern. Further, the flexible schedule was not an accommodation for her disability, but for the dietitian’s transportation difficulties, the court suggested. Transportation to and from work is not an essential function of the position or a privilege of employment, so the employer was not required under the ADA to accommodate her transportation barriers. The employer “cannot control where [the dietitian] lives, whether there is public transportation available to her, or whether her friends or family can give her rides to and from work. It cannot control these variables for any dietitian, disabled or not,” the court said.

The court clarified that “responsible employers” will continue to work with employees to deal with obstacles outside of the workplace. However, the ADA does not require an employer to accommodate disabled employees for problems they face outside of work that are not related to the essential functions of their position, it concluded.