Let's say that you have an employee whom the Americans with Disabilities Act would consider disabled and to whom you have afforded a reasonable accommodation for a long time.
Maybe it's a few years of light duty to accommodate your employee's bad back. Maybe it's keeping your employee with medically-documented sleeping issues off of the graveyard shift.
Or maybe, like in this case [an enhanced version of this opinion is available to lexis.com subscribers], it's allowing an employee who takes morning meds for ADD and bipolar disorder to arrive to work a late, so the meds can kick in. Indeed, for 2 1/2 years, the employee in this particular situation was accommodated with modified start time.
But following a change in management at the company, without explanation, the employer unilaterally withdrew the accommodation. Just like that.
So, the employee brought a failure-to-accommodate claim under the ADA.
Now, you may be thinking, can an employer really do that? Can it just stop accommodating an ADA-disabled employee without some sort of justification or demonstrating undue hardship?
Funny, that's what a federal judge was thinking when he not only denied the employer's motion for summary judgment, but also granted the plaintiff's cross motion:
"Crane had already made a reasonable accommodation to enable Isbell to do her job -- for some 2-1/2 years it had accommodated the later-starting work schedule that she had requested to meet her special needs for the performance of her job responsibilities. No real reason has been proffered by Crane as to why a new management broom, who (not incidentally) had no prior knowledge of Isbell's special arrangement or of the needs that had prompted it, should be entitled to start by subjecting her to a one-size-fits-all timing sweep. Indeed, as already indicated in the preceding paragraph, such uniformity of treatment is precisely what the underlying purpose of the ADA rejects."
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Because the undisputed facts, even when construed in Crane's favor, demonstrate that Isbell could and did adequately perform her essential duties for over two years with the reasonable accommodation of a 10 a.m. start time, Crane's sudden replacement of that start time with a more onerous schedule without considering her known disability plainly constituted an unreasonable failure to continue to accommodate that disability under the ADA.
Does this mean that employers who offer long-term accommodations are stuck providing them for life? No. One option is for the employer and employee to re-engage in a good-faith interactive dialogue to determine what other accommodation(s) may allow the employee to perform the essential functions of her job.
But, to discontinue an accommodation altogether, an employer will have to demonstrate that the existing accommodation has become an undue hardship.
This article was originally published on Eric B. Meyer's blog, The Employer Handbook.
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