Potential ADA Accommodations Abound, but a Few Declared ‘Unreasonable’
There’s no exhaustive list of potentially reasonable accommodations for employees with disabilities. Whether an accommodation is reasonable will depend on the unique circumstances of each instance, including the individual’s limitations and essential job functions. Some accommodations, however, have been declared “unreasonable.”
3 Unreasonable Accommodations
It isn’t reasonable to eliminate job’s essential functions. An essential function is a “fundamental duty of the position.” It’s a central component of the job in question. When determining whether a function is essential, courts will typically consider (1) the identification of particular duties or functions in job descriptions or advertisements, (2) the amount of time spent performing the function, and (3) the number of employees available to perform it, among other factors.
Under the Americans with Disabilities Act (ADA), the purpose of an accommodation is to enable an employee to continue performing the essential job functions. Thus, the Equal Employment Opportunity Commission (EEOC) has long advised an employer “does not have to eliminate an essential function, i.e., a fundamental duty of the position” as an accommodation. You can typically reject any request to do so on the grounds it isn’t reasonable for ADA purposes.
It isn’t reasonable to place employee in position for which he isn’t qualified. Transferring an employee to a different position may constitute a reasonable accommodation. But he must be qualified for the position, i.e., have the education, experience, and/or skills necessary to perform the new role.
Plus, there’s no obligation for you to help the individual become qualified. For instance, if the employee would have to obtain certifications or training to perform the job properly, you don’t have to provide them or wait for him to obtain them, unless you do so for other nondisabled persons entering the particular job classification.
It isn’t reasonable to grant open-ended or indefinite leave of absence during which no work can be performed. An extended leave of absence may constitute a reasonable accommodation for ADA purposes. It isn’t reasonable, however, when an employee requests an open-ended or indefinite leave of absence but is unable to perform any essential functions during the leave.
As U.S. Supreme Court Justice Neil Gorsuch noted while serving on the U.S. 10th Circuit Court of Appeals (whose rulings apply to all Oklahoma employers), “reasonable accommodations—typically things like adding ramps or allowing more flexible work hours—are all about enabling employees to work, not to not work.”
Takeaways for Employers
Keep the above potential limitations in mind when administering the ADA with your employees. Although a particular accommodation may not be considered reasonable, you remain free to extend it. Keep in mind, however, that extending it to some, but not all, could expose your organization to liability.
As we continue to adapt and (hopefully) emerge from the COVID-19 pandemic, you must affirmatively reinstate any essential functions that were excused during the pandemic, such as physical attendance in the workplace. Make sure your employees are aware of their essential functions, particularly as they return to the workplace. Update job descriptions periodically to make sure they accurately reflect the job duties.
Article courtesy of content partner BLR. Author, Courtney Bru is an attorney in the Tulsa, Oklahoma, office of McAfee & Taft.