BETH SUFIAN
The employer must provide only an accommodation that enables the employee to perform the essential functions of the job.
BY BETH SUFIAN
The Americans with Disabilities Act is a federal law that protects people with disabilities from discrimination in a variety of areas. Title I of the Act provides that employers who have 15 or more employees cannot discriminate based on a person’s disability. In addition, state and local governments cannot discriminate against people with disabilities no matter how many employees the state or local government employs. The Rehabilitation Act of 1973 Section 504 protects individual with disabilities who work for the federal government or for an employer who receives federal funds regardless the size of the employer. The following column will discuss issues related to reasonable accommodations. Be sure to consult an attorney who practices in this area of the law if you have questions about your specific situation.
A. General Requirement- Reasonable Accommodations
Both the ADA and Section 504 provide an important protection for individuals with disabilities, the requirement that an employer provide a reasonable accommodation to the employee with a disability if such accommodation is needed in order for the individual to perform the essential functions of their job. The law provides examples of possible reasonable accommodations such as modifying work schedules or reassignment to a vacant position. (See 42 U.S.C. Section 12111(9)). However, the law does not give a finite list of what will be considered a reasonable accommodation. The law was drafted in this way in an effort to make sure that the determination of what a specific individual needs as reasonable accommodation to perform a job is based on that individual’s specific circumstances. The type of reasonable accommodation that may be appropriate for an employee will depend on the type of disability involved, the requirements of the job and the resources of the employer.
B. The Process
The employer and employee should engage in an interactive process to determine what changes need to be made to allow the employee to perform the essential functions of the job without imposing an undue hardship on the employer. The ADA or Section 504 does not require an employer to provide the employee with the best accommodation available or the specific accommodation the employee requests. The employer must provide only an accommodation that enables the employee to perform the essential functions of the job. If the employee and employer cannot agree on an accommodation then the employee can file a charge of discrimination with the Equal Employment Opportunities Commission within 300 days of the date the discriminatory conduct occurred. In most states the employee can also file a charge of discrimination with a state agency but usually the employee will have to file the charge of discrimination within 180 days of the date the discrimination occurred. Many times the state agency will send the charge to the EEOC for investigation.
The EEOC will investigate the complaint and if they think there has been a violation of the law they will try to help the parties resolve the matter. If it is not possible to resolve the matter the individual with the disability will be given an EEOC Right to Sue letter. The Right to Sue letter will allow the individual to bring a lawsuit for a violation of the law. The individual has 90 days to file a suit after he receives a Right to Sue letter from the EEOC. After 90 days have passed the individual’s right to file a lawsuit ends. Therefore, an individual should be careful about requesting Right to Sue letters from the EEOC if they have not found a lawyer to take their case and assist with filing suit. In a limited number of cases the EEOC will decide to bring a lawsuit on behalf of the individual but this is rare.
Filing suit is a time-consuming and expensive proposition. Therefore, it is in the employee’s best interest to try to resolve the matter prior to filing suit. The following is a discussion of what the courts have said about possible reasonable accommodation that have been provided to individuals with disabilities. As discussed above, an employee’s specific situation will always determine whether the reasonable accommodation is appropriate for that individual but it is helpful to understand what courts have said about certain reasonable accommodations.
C. Leave Time
Many adults with CF who are employed often find that they need additional time off from work due to the need for hospitalization or home I.V. therapy. Some courts have held that there are two factors to be considered when an employee requests additional time off from work to care for themselves. First, whether the employee indicates that they will be able to return to work within a specific period of time or whether they are requesting leave for an unspecified amount of time and that their position be held open indefinitely for them. Second, whether the employee’s absences from work are unexplained or erratic.
Courts have also looked to how many people are employed by the employer. In cases where the employer has thousands of employees and where those employees can cover the duties of the employee who must miss work due to their disability, courts have held that the employer should give a reasonable amount of leave. Individuals who qualify for time off under the Family Medical Leave Act (FMLA) are entitled to take up to 12 weeks off from work to care for themselves due to illness. The FMLA provides up to 12 weeks of unpaid leave to an individual who works for an employer with 50 or more employees and who has worked for the employer for one year and for 1250 hours in the year prior to requesting the leave. Some courts use the amount of time allowed under the FMLA as the limit of time that could be given as a reasonable accommodation under the ADA.
Therefore, it is important for individual with CF to indicate a specific time period that they will be off from work when requesting additional time off as a reasonable accommodation. If that date ends up being incorrect the individual can always request additional time off. If your employer requests a letter from your doctor, make sure your doctor gives a specific time period the doctor thinks you will need to be off work. Telling an employer that you need an indefinite amount of time off is a sure way to have a request for time off denied. If an adult with CF thinks a large amount of time off will be needed and the employer provides short-term or long-term disability insurance make sure you request an application for such benefits. If an employer fires an individual because the person is unable to come to work, the individual will lose their right to file a claim for benefits under short-term or long-term disability benefits. Such benefits are only available to an employee who needs time off due to illness. However, once an employee qualifies for such benefits the employee usually can keep the benefits even if the employer terminates the employee’s employment. Although, some short-term policies that are provided by an employer state that the employee must be employed to continue receiving benefits. It is important to check your policy and make sure what it provides.
D. Working from Home
According to one court an employer is not required to allow an employee with a disability to work from home if their productivity will be greatly reduced. However, that court’s decision was specific to that case which involved a person who had a job that required him to be physically in the office in order to perform the duties of his job. There are many jobs that lend themselves to be done at a person’s home. Especially with so many advances in technology, working from home may be a possible accommodation an individual with CF may request from their employer. Whether the employer grants such an accommodation will depend on the person’s job, the job requirements and the ability to perform the job from home.
E. Reassignment to Another Job
Another possible reasonable accommodation is the transfer of an employee with a disability to a vacant position for which she is qualified. However, the employer is under no duty to keep an employee on unpaid leave indefinitely until such a position becomes available. An employer is not required to create a new position for an employee with a disability. However, if such a position is vacant and the employee with a disability is qualified for the position it would be a reasonable accommodation to reassign an employee to that position.
Therefore, an individual with CF who may become unable to perform their job due to their disability may be able to be reassigned to another vacant position they can perform. For example, an individual with CF who is a nurse may become unable to perform the job of nurse because he must spend all day on his feet. However, he may be qualified to be an admitting nurse, which would involve sitting at a desk instead of working on his feet. If the position is open and the person is qualified for the position it may be a reasonable accommodation to request such a reassignment. If the employee is a member of a union there may be union rules that relate to reassignment to vacant jobs that involve seniority and that would take precedence over a request for a reasonable accommodation of a job reassignment.
F. Job Restructuring and Physical Modifications
Reassignment from a job that has nighttime hours to a job that has daytime hours could be a potential reasonable accommodation given to an employee with CF. In addition, if the employee needs physical modification to the place where the job is done, such modifications can be requested. For example, if a person with CF needs a smoke-free environment and smoking is allowed in the workplace, the employee could request that the employer adopt a no smoking policy at the place of employment.
ADA Goal
The ADA section on reasonable accommodation provides an opportunity for some adults with CF to request accommodations needed to stay employed. In this difficult economic climate, it is important for adults with CF to make sure that requests for reasonable accommodation can be supported by their treating physician if need be. Some employers will request a letter from the physician indicating that such a reasonable accommodation is necessary for the employee to be able to perform their job. For more information on reasonable accommodations go to the Disability Law Resource Project website at www.dlrp.org or call them at 1-800-949-4232.