spring 2006
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ADA in the Workplace: How to Manage and Accommodate Employees with Disabilities
Anne E. Larson, Chair of the firm’s Labor & Employment practice group, concentrates her practice on management-side labor and employment matters and tries discrimination, wage and non-competition/trade secrets disputes in state and federal courts throughout the country. Business owners depend on Anne for anti-harassment training and cost-conscious advice on their hiring/firing practices, employee handbooks, and disability and leave issues. Executives rely on her negotiating skills for their compensation and severance agreements. Anne can be reached at 312.521.2728 or alarson@muchshelist.com.
By Anne E. Larson
The Americans with Disabilities Act (ADA) prohibits employers from discriminating against qualified individuals with disabilities in the terms and conditions of employment (i.e., job application procedures, hiring, promotion, job training and firing). A “qualified” applicant or employee with a disability is an individual who, with or without reasonable accommodation, can perform the essential functions of the job in question. The following three situations can help employers learn how to better manage and accommodate individuals with disabilities.
Situation 1
You made a conditional offer of full-time employment to a temporary employee who performed well in his assignment. The job is conditioned on his passing a background check, drug screen and physical. The examining physician informs you that the applicant failed the physical because he has uncontrolled diabetes. Can you rescind the job offer?
ConAgra did just that in Rodriguez v. ConAgra Grocery Products Co., a case decided in January 2006 by the Fifth Circuit. The plaintiff filed an EEOC charge and subsequently filed suit, alleging that ConAgra refused to hire him because it wrongly perceived his diabetes to be uncontrolled. The district court determined there was no disability discrimination because ConAgra withdrew the job offer based on the physician’s assessment. The Fifth Circuit reversed and held that (1) the physician did not have enough information to find that the plaintiff’s diabetes was uncontrolled; and (2) ConAgra did not have enough information to conclude he was unable to perform the job.
The Fifth Circuit explained that the physician’s finding was based on one urinalysis and the plaintiff’s inability to remember the name of his diabetes medication. Essentially, the physician leapt to the conclusion that the plaintiff was not taking his medication because he could not remember its name. Neither the physician nor ConAgra had any evidence that the plaintiff did not take his medication, and the plaintiff had no history of complications from diabetes.
ConAgra’s decision not to hire the plaintiff ignored the ADA’s mandate that an employer must consider an impaired applicant on the basis of actual abilities. The plaintiff’s temp work showed that he could do the job (and do it well). ConAgra should have considered that fact, rather than deferring to the physician’s thinly supported assessment. In short, ConAgra’s decision amounted to improper speculation about the hypothetical risks posed by an uncontrolled diabetic.
Lessons Learned
The lesson here is that further inquiry may be necessary when an applicant fails a post-offer physical—especially when the applicant has demonstrated that he or she can do the job.
As the ConAgra court held, “An employer cannot slavishly defer to a physician’s opinion without first pausing to assess the objective reasonableness of the physician’s conclusions.” ConAgra suggests there is some obligation on the employer’s part to resolve any conflict between the physician’s assessment and what the company knows about the applicant’s ability to do the job.
Situation 2
What do you do if an employee with multiple sclerosis asks you to accommodate her disability by letting her work from home? She is generally wheelchair bound, although she has difficultly accepting that fact. When she tries to walk, she often falls and hurts herself.
To date, cases have held that employers can deny work-from-home accommodation requests without violating the ADA. In Vande Zande v. Wisconsin Dep’t of Admin., the Seventh Circuit explained the rationale for denying such requests: “Most jobs in organizations, public and private, involve teamwork under supervision rather than solitary unsupervised work, and teamwork under supervision generally cannot be performed at home without a substantial reduction in the quality of the employee’s performance.”
The court found that the need for teamwork and direct supervision defeated a program assistant’s work-from-home accommodation request, even though she was a paraplegic who was unable to report to work regularly because of pressure ulcers. The court explained that it would “take a very extraordinary case” for the employee to show that the denial of a work-from-home request violated the ADA.
In a more recent case, Mason v. Avaya Communications, Inc., the Tenth Circuit affirmed the denial of a similar request because the employer could demonstrate that it had never before allowed an employee in the plaintiff’s position to work from home. Although the plaintiff performed her job functions by e-mail, telephone and facsimile and stated there was technology available that allowed coworkers to route calls to her when they needed coverage, the court determined that direct supervision and teamwork were essential job functions. The court did not inquire why direct supervision was required, what sort of supervision was actually in place or whether the plaintiff’s work performance justified relaxing this oversight.
Lessons Learned
These rulings do not mean that all work-from-home requests should be denied outright without review. If you think a work-from-home accommodation is the right thing to do in a specific situation, then implement the accommodation with care. However, make sure you can effectively prevent a flood of other work-from-home accommodation requests by distinguishing those few situations you will accommodate:
- Determine how much teamwork and interaction with other employees is involved in the job at issue;
- Know what direct supervision is actually in place and why it is required for this employee or job; and
- Establish why these supervision and teamwork requirements cannot be relaxed.
Employers must also understand that if they grant work-from-home accommodations, they are responsible for workers’ compensation claims resulting from accidents suffered in the home (i.e., an employee’s falling down her stairs or cutting herself with a knife). Furthermore, employers cannot ask employees to preemptively sign a release waiving the employer's workers' compensation liability for injuries suffered at home. The Illinois Workers’ Compensation Act (and similar statutes in most other states) does not allow employees to waive their right to compensation without first obtaining the Industrial Commission’s approval.
Situation 3
What do you do if a manager provides a doctor’s note requesting a preferential shift (i.e., no evening or weekend hours)? The note does not specify the employee’s medical condition, nor does it fully explain the reasons for the accommodation.
In this instance, the medical note provided by the employee is insufficient because it does not specify the existence of a disability, the reason she cannot work in the evening or on weekends, or the medical necessity of the accommodation. If an employee requests an accommodation and provides insufficient documentation from her treating physician, the ADA allows employers to (1) explain why the documentation is insufficient and ask the employee to provide additional documentation from her doctor, (2) consult with the employee’s doctor (with the employee’s written consent), or (3) require the employee to see a health care professional of the employer’s choice. However, according to EEOC Enforcement Guidance: Disability-Related Inquiries and Medical Examinations under the Americans with Disabilities Act (ADA), it is preferred that employers pursue options 1 and 2 before sending the employee to a doctor of its choosing.
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