Patience required to ensure lawful ADA reasonable accommodations process
The ADA requires reasonable accommodations for disabled employees to help them perform their jobs. Employers that patiently go about the sometimes complicated business of identifying reasonable accommodations for disabled employees seldom end up losing in court.
The key is to take the ADA seriously and work with the employee at every stage, from the time when a disability becomes apparent to the exploration of possible accommodations to final decisions on whether or not an accommodation will work.
The process of finding an accommodation must be interactive, a give-and-take between employer and employee. Document every step along this two-way street—both your accommodations suggestions and the employee’s response. That way, should the employee finally reject your offers, you can show that you lived up to your ADA obligations.
Recent case: Andrea, who worked for the University of Pennsylvania, received increasingly negative performance reviews. Her performance may have slipped because her mother was gravely ill. After her mother died, Andrea took two weeks of leave and then returned to work.
Her performance didn’t improve. Andrea blamed her grief in part, as well as a supervisor she said treated her poorly. For example, she claimed her supervisor wouldn’t say good morning to her and generally wasn’t sympathetic to her family situation.
Andrea requested FMLA leave for acute stress disorder, major depressive disorder and memory issues. Her request was approved and she took 12 weeks of FMLA leave. Afterward, she still wasn’t prepared to come back and took an additional 12 weeks off under the university’s more generous leave program.
Then she requested reasonable ADA accommodations before she could return. The university agreed to three of her four requested accommodations, including conducting an ergonomic review of her workspace, allowing a part-time schedule and additional time to reacquaint herself with the job and procedures so she could successfully perform the essential functions. However, the university drew the line at Andrea’s request for a new supervisor.
Andrea rejected the proposed accommodations. She lost her job and then she sued.
The court dismissed her lawsuit. It reasoned that not only had the university provided her more time off as an accommodation, but it had offered to provide every accommodation Andrea was entitled to. Demanding a new supervisor isn’t reasonable, the court concluded.
The court said Andrea, not the university, had been responsible for the breakdown of the reasonable accommodations process and therefore could not sue for failure to accommodate. (Sessoms v. Trustees of University of Pennsylvania, ED PA, 2017)
Final note: The university did everything right. For example, it offered additional time off after Andrea exhausted her FMLA leave. Terminating a disabled employee once they have used all their FMLA leave may violate the ADA. That’s because additional time off may be a reasonable accommodation if the employee’s request isn’t for indefinite leave.
Plus, the university worked patiently with Andrea and considered every one of her requests for accommodations, rejecting only the one (a different supervisor) for which there is little to no legal precedent.