March 28, 2023
This Week in Massachusetts – March 28
Remote Work Hits Office Rents Axios – Boston-area office rents have survived the work-from-home revolution so far, at…Read More
If you are not an AIM member - Consider joining. AIM Members receive access to all our premium content online.
If you're an AIM member please login to your AIM account to view this post:
Posted on February 21, 2023
The Americans with Disabilities Act (ADA) requires employers to engage in an interactive dialogue with employees with disabilities to explore reasonable accommodations. A 2022 federal case in the Eight Circuit (Minnesota) demonstrates how critical the process is to enable an employer to defend against a claim of disability discrimination.
When an employer has received a request for an accommodation or if the employer has reason to know that the employee may need an accommodation, that employer must initiate the interactive process.
In this case, a longtime employee of a large university was diagnosed in 2014 with temporomandibular joint syndrome (TMJ), a condition that can affect the ability to speak. The following year, the employee was transferred to a customer-service position that required her to respond to customer questions by phone, email and in person.
In 2016 the employee took a six-week Family Medical Leave Act (FMLA) leave to address the effects of speaking on her TMJ. When she returned to work, she requested and was granted accommodation, including leave to attend medical appointments and for flare-ups of her condition. She also requested non-speaking breaks of 15 minutes per hour, that these breaks not include her lunch period, and that the university provide phone service that can manage and record break times. In the alternative, she asked to be reassigned to a position that did not require speaking.
The university granted the breaks without reducing her lunch period and agreed to investigate installing new phones. Initially it offered to refer the employee to its disability resource center to discuss a transfer, but the employee rejected this offer as it required her to resign from her current job. The employer then withdrew this offer.
In January 2017, the employee requested additional accommodation. She asked that the university provide:
While not clear from the court’s opinion, it appears that the employer granted these requests.
In March 2017, the employee notified the employer that she had been diagnosed with neck-muscle strain, upper back pain, bilateral hand pain, tendonitis of the elbow or forearm, head and face pain, anxiety, and PTSD. She informed the university that she experienced overuse injuries from constant typing and she requested additional accommodations: restrictions on lifting 20 or more pounds, additional time off for medical appointments, an occupational medicine consultation, and reassignment to a job with no more than four hours of speaking per day.
Once again the university offered to help the employee to find a different position and referred her to its job center.
The employee identified several jobs of interest, and with the help of her attorney and the employer prepared a lengthy questionnaire to collect information about the jobs. The employer investigated the requirements of these positions and was unable to accommodate the extensive restrictions that she requested. As they continued to explore other jobs, the employee requested a three-week leave followed by five weeks of reduced-schedule leave. The employer approved this request. When the employee later asked for an extension of her leave, the university denied the extension and terminated her employment because she could not work full-time, an essential function of her job.
The employee filed claims with the Equal Employment Opportunity Commission (EEOC), alleging that the employer discriminated against her based on her disability, failed to provide reasonable accommodation, and retaliated against her. When the EEOC dismissed her claims, she filed in federal court. After the district court granted summary judgment to the employer, she appealed, raising only the issue of reasonable accommodations.
The Court of Appeals found that merely identifying jobs in which she was interested was insufficient to show that the employer denied her reassignment because of her disability. Rather, given the number and extent of the requested accommodations (eleven in all), she was required to show that she “possessed the requisite skill, education, experience, and training for the position and could perform the position’s essential duties with or without a reasonable accommodation.” Here the court found that there was a material issue of fact as to whether she could have performed the jobs.
Next, the court addressed whether the employer had engaged in the interactive process. The employee pointed to an eleven-day delay in response to her inquiry about one of the jobs as evidence that the employer did not act in good faith to find a suitable position. The court disagreed, finding that the employer had granted numerous accommodations, had explored technologies to assist the employee, and had on several occasions sought a position in which she could be accommodated. Furthermore, even if the employer had not acted in good faith, the employee did not demonstrate that she could perform the jobs considering her extensive restrictions.
This case exemplifies how crucial the interactive process is to the protections of the ADA. This employer was able to overcome a claim of disability discrimination by showing that it had engaged in the process in good faith.
AIM members with questions about ADA compliance or any other human resources issue may contact the AIM Employer Hotline for member at 800-470-6277.