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It’s dangerous to let supervisors set ADA accommodations

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in Discrimination and Harassment,Human Resources

Smart employers don’t leave it up to a direct supervisor to manage ADA reasonable accommodation. Instead, they work out a system that requires HR’s oversight.

Otherwise, a boss with a grudge could set up a disabled employee to fail—and set the table for a costly ADA lawsuit.

Advice: Have someone in HR work with both employees and supervisors to make sure all accommodations are implemented fairly and that any problems are quickly rectified.

Recent case: Marianne worked as one of six members of a customer service team at Momentive Specialty Chemicals. All the reps covered for one another when necessary, including during absences, vacations, workday breaks and busy periods.

Momentive’s policy specifically stated that attendance was an essential function of the job, and that employees who were tardy or missed too much work would be terminated if they didn’t improve.

When Marianne developed colitis and irritable bowel syndrome, she took medical leave until her condition improved. Then she asked for a reasonable accommodation that included a flexible start time, plus more frequent restroom breaks. Her doctors said that bouts of abdominal pain might mean she’d have to rush to the restroom without notice.

The company refused to consider a flexible start time—and then turned over the matter to Marianne’s supervisor.

Before long, Marianne was receiving attendance warnings.

Her supervisor kept an attendance log, noting all absences and tardy arrivals. Marianne questioned some of the late arrivals, claiming they were incorrect. Shortly after, Marianne was terminated for poor performance.

She sued, alleging failure to accommodate her disability.

As proof, she had co-workers testify that they easily covered for her when she was late or had to use the restroom. Co-workers also testified that their boss made fun of Mari­­anne’s bathroom breaks and medical problems and that she didn’t treat other tardy reps the same way.

Marianne also provided evidence from official clock-in records that showed she arrived on time on occasions when her supervisor had listed her as tardy.

Initially, Momentive argued that Marianne wasn’t entitled to accommodations because attendance was an essential function of her job. Even with accommodations, it said, she wouldn’t be able to do her job. Then it argued that even if she were disabled, it had accommodated her by allowing her to call in if she thought she might be late or delayed in the restroom.

The court ordered a trial. It said there was evidence the supervisor kept inaccurate records that didn’t mesh with official time records. It also suspected the boss was disdainful of Marianne’s disability.

Finally, it questioned whether it was really a reasonable accommodation to require Marianne to call if her illness was going to make her late or delay her return to her work station. The company had suggested she could keep a clock and phone in the bathroom; the court seemed to think making an employee call while using the toilet was not a reasonable solution. The case will now go to trial. (Peirano v. Momentive Specialty Chemicals, No. 2:11-CV-00281, SD OH, 2012)

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