Category: Reasonable Accommodation

Posted on

Long hours, changing conditions, and availability to handle issues are essential functions of a Les Schwab assistant manager.

Peter Atkinson was a long-term Les Schwab employee with a history of chronic migraine headaches. After being promoted to a position of assistant manager, which required a more demanding schedule, he began to miss work, take time off to sit in the break room, and leave before his shift was over because of migraine symptoms. At other times, he continued to work but in a “lesser capacity” because of discomfort. According to his supervisor, Atkinson’s performance and motivation because increasingly worse.

Atkinson wanted Les Schwab to reduce his hours down to 40 to 50 per week and to allow him to schedule consistent, uninterrupted breaks. Les Schwab did not reduce his hours or the scheduled breaks. Les Schwab contended that because of the fast pace and high sales volume, the hours and management team’s presence were essential job functions.

Les Schwab ultimately removed Atkinson from his position. He sued Les Schwab for, among other things, failure to provide him with a reasonable accommodation in violation of RCW 49.60.

The Court of Appeals dismissed his claim. Atkinson v. Les Schwab Tire Centers of Washington, Inc., No. 44326-1-II, 2014 WL 1746110 (April 29, 2014). An employer is not required to eliminate or modify the essential functions of a job. The Court concluded that Atkinson’s requested changes would have required just that. The Court noted:

But long hours, changing conditions, and availability to handle issues that arise unexpectedly are key aspects of a managerial role. The Chehalis Les Schwab averaged more than 5 million dollars in sales annually. To handle this volume, there were nearly 30 employees and only 3 managers at any given time. The management team was expected to be at the location before the hourly employees and to stay later. The luxury of completely uninterrupted breaks was not available to managers as it may have been for others.

This case is another example of the limits on an employer’s obligation to provide accommodations. An employer can require employees, even those with disabilities, to perform essential job functions, with or without a reasonable accommodation. Atkinson, though, did not want an accommodation to enable him to perform essential job functions; rather, he wanted the essential functions altered. That goes beyond an employer’s obligations.

Posted on

Washington Court Addresses When an Accommodation is Reasonable

The Washington Court of Appeals recently addressed what constitutes a “reasonable” accommodation.  Frisino v. Seattle School Dist. No. 1.   Ms. Frisino, a teacher, took a leave of absence because of her sensitivity to airborne irritants in the classroom.  The parties agreed Ms. Frisino had a disability, and the district took several steps to accommodate her — such as remediating the classroom to remove the mold.

The Court of Appeals held that an issue of fact existed concerning whether the district’s efforts constituted a “reasonable accommodation” because of evidence suggesting those efforts were not effective in removing the airborne irritants.   For example, Ms. Frisino testified that she visited the “clean” classroom and thought airborne mold spores might not be contained by plastic she saw taped over a hole where ceiling tiles had been removed.

The Court of Appeals  reasoned that the term “reasonable” accommodation means an accommodation that is effective in removing the workplace barrier that is preventing the employee from returning to work.

The United States Supreme Court takes a different view.  In US Air v. Barnett, the Supreme Court held that, under the ADA, the tern “accommodation,” not “reasonable,” encompasses whether a workplace modification is effective.   The term “reasonable,” the Supreme Court reasoned means well . . .  “reasonable.”   So much for clarification.

The primary significance of the how the terms are defined is what the employee and employer have to prove if a lawsuit is filed.

From a practical standpoint, Frisino provides provides little clarification for employers on what exactly is a “reasonable accommodation.”  But whatever its exact meaning, the case makes clear that courts will carefully scrutinize not only whether an employer took steps to try to accommodate an employee with a disability,  but whether those steps were actually effective  in removing workplace barriers.

Posted on

Final ADAAA Regulations Issued

The EEOC as finally released the new ADAAA regulations to the public.   You can get a copy of the new regulations here.   The regulations will be published in the Federal Register on Friday.

We are still analyzing the  regulations, but one significant change from  the proposed rule is  the inclusion of nine rules of construction for deciding whether something is a disability.  The rules are as follows:

  • The term “substantially limits” shall be construed broadly in favor of expansive coverage, to the maximum extent permitted by the terms of the ADA. “Substantially limits” is not meant to be a demanding standard.
  • An impairment is a disability within the meaning of this section if it substantially limits the ability of an individual to perform a major life activity as compared to most people in the general population. An impairment need not prevent, or significantly or severely restrict, the individual from performing a major life activity in order to be considered substantially limiting. Nonetheless, not every impairment will constitute a disability within the meaning of this section.
  • The primary object of attention in cases brought under the ADA should be whether covered entities have complied with their obligations and whether discrimination has occurred, not whether an individual’s impairment substantially limits a major life activity. Accordingly, the threshold issue of whether an impairment “substantially limits” a major life activity should not demand extensive analysis.
  • The determination of whether an impairment substantially limits a major life activity requires an individualized assessment. However, in making this assessment, the term “substantially limits” shall be interpreted and applied to require a degree of functional limitation that is lower than the standard for “substantially limits” applied prior to the ADAAA.
  • The comparison of an individual’s performance of a major life activity to the performance of the same major life activity by most people in the general population usually will not require scientific, medical, or statistical analysis. Nothing in this paragraph is intended, however, to prohibit the presentation of scientific, medical, or statistical evidence to make such a comparison where appropriate.
  • The determination of whether an impairment substantially limits a major life activity shall be made without regard to the ameliorative effects of mitigating measures. However, the ameliorative effects of ordinary eyeglasses or contact lenses shall be considered in determining whether an impairment substantially limits a major life activity.
  • An impairment that is episodic or in remission is a disability if it would substantially limit a major life activity when active.
  • An impairment that substantially limits one major life activity need not substantially limit other major life activities in order to be considered a substantially limiting impairment.
  • The six-month “transitory” part of the “transitory and minor” exception to “regarded as” coverage in § 1630.15(f) does not apply to the definition of “disability” under paragraphs (g)(1)(i) (the “actual disability” prong) or (g)(1)(ii) (the “record of” prong) of this section. The effects of an impairment lasting or expected to last fewer than six months can be substantially limiting within the meaning of this section.

The ADA applies to all employers with least 15 employees.   Washington employers who have at least 8 employees must analyze disability issues under Washington’s Law Against Discrimination, as well as under the ADA if they have at least 15 employees, which has a definition of disability different from that under the ADA.

Posted on

Accommodating Disabilities Affecting the Ability to Commute

Two recent cases show that employers must consider accommodating employees with disabilities affecting the ability to commute.

In Colwell v. Rite Aid, a cashier became blind in one eye, which made it difficult and dangerous for her to drive at night.  Colwell sued for failure to accommodate her disability when Rite Aid refused to schedule her for only day shifts.  The trial court concluded  that Rite Aid had no duty to accommodate Colwell’s limitations concerning her commute because the Americans with Disabilities Act was designed to only cover an employee’s ability to work in the workplace.  The Third Circuit disagreed.  It wrote:

… we hold as a matter of law that changing Colwell’s working schedule to day shifts in order to alleviate her disability-related difficulties in getting to work is a type of accommodation that the ADA contemplates.

On July 21st, the Ninth Circuit Court of Appeals reached the same result in a similar case.  In Livingston v. Fred Meyer Stores, a wine steward with a vision impairment that affected her ability to see after dark asked for a modified schedule during the fall and winter to minimize after dark driving.   She was discharged after she refused to work her scheduled late shift.

Following Colwell, the Ninth Circuit said that an employer has a duty to accommodate an employee’s limitations that affect the ability to get to and from work.

These cases make clear that employers should consider modifying an employee’s schedule when a disability is affecting the employee’s ability to commute.  Just how far the duty to accommodate commuting issues extends, though, is unclear.  For example, what if an employer has multiple locations in an area and the employee has a long commute.  Must the employer consider transferring the employee to a location closer to home if the employee has an impairment that limits the amount of time that can be spent driving?  Does it matter if there is public transportation the employee could use?

We will have to wait for other cases to understand the full scope of an employer’s duty.  For now, employers faced with accommodation requests concerning commuting should consider whether the accommodation is a reasonable one and whether providing it would cause the employer an undue hardship.

(Photo Courtesy of FreeFoto.com)