An employee is undergoing chemotherapy. An employee suffers from an auto-immune disorder. An employee suffers from circulatory difficulties. Whatever the disability, the employee’s doctor has asked for time off for the employee. Or, perhaps the employee’s doctor has asked for a permanent limitation in the employee’s work hours, because of the employee’s condition. What is the extent of the employee’s entitlement to accommodation with time off or limited duty hours?
Of course, if an employee worked the requisite hours in the preceding year and otherwise qualifies for Family Medical Leave Act or California Family Rights Act leave, they will be entitled to some time off. However, what accommodations should/must an employer make when this statutorily-provided leave is expired?
First, the employer should be mindful of the fact that, under the ADA Amendments Act (ADAAA), the term “disability” is broadly construed and covers, e.g., cancer in remission and autoimmune disorders like rheumatoid arthritis, without regard for “mitigating measures” like chemotherapy. See, inter alia, ADAAA § 2(a); ADAAA § 4; 42 U.S.C. § 12102(4)(D), as amended. Though employers might formerly have defended an action by arguing that the purported disability only limits the employee in a particular job or narrow class of jobs (e.g., under Toyota Motor Mfg., Ky., Inc. v. Williams, 534 U.S. 184 (2002)), now, the employer can safely assume the employee requiring substantial time off or a limited work schedule will qualify under the definition of disability, and should move quickly to the reasonable accommodation inquiry.
Second, federal regulations define “reasonable accommodations” as “[m]odifications or adjustments to the work environment . . . that enable a qualified individual with a disability to perform the essential functions of that position.” 29 C.F.R. § 630.2(o)(1)(ii). Both the FEHA and ADA specifically list scheduling adjustments as examples of “reasonable accommodations” and use identical language. See Cal. Gov. Code § 12926(n)(2) (“Job restructuring, part-time or modified work schedules”) and 42 U.S.C. § 12111(9).
Numerous courts have endorsed these regulatory examples as well. See, e.g., Jensen v. Wells Fargo Bank, 85 Cal.App.4th 245, 263 n.6 (2000) (reasonable accommodation may include part-time or modified work schedules) (citing Cal. Admin. Code tit. 2, § 7293.9(a)(2)); Witchard v. Montefiore Medical Center, 2009 WL 602884, at *16 (S.D.N.Y. Mar 9, 2009) (“Examples of reasonable accommodations may include, but are not limited to . . . “part-time or modified work schedules”) (quoting 29 C.F.R. § 1630.2(o)(2)(i) and (ii)); Falor v. Livingston County Community Mental Health, 2003 WL 21684183, at *5 (W.D.Mich. May 30, 2003) (“Examples of “reasonable accommodation” include, without limitation . . . part-time or modified work schedules”) (quoting 42 U.S.C. § 12111(9)(B)); Valentine v. American Home Shield Corp., 939 F.Supp. 1376, 1399 (N.D.Iowa 1996) (“part-time employment is a possible reasonable accommodation”).
So, the employer should assume that the employee’s condition is a disability if he or she needs a reduced work schedule and/or extra time off, and should assume that such an accommodation is among those which might generally be considered a reasonable accommodation. However, the inquiry only begins there. Must an employer make a temporarily reduced work schedule a permanent accommodation, and how much time off must an employer allow an employee?
A. An Employer May Not Eliminate Reasonable Accommodations Simply by Designating them as “Temporary.”
As the Equal Employment Opportunity Commission's (EEOC's) interpretive guidance on the ADA makes clear, the duty to identify and provide a reasonable accommodation under the ADA is an ongoing duty to identify and provide accommodations that enable the employee to perform the essential functions of the job held or desired. 29 C.F.R. § 1630.9. This issue was analyzed in depth last year by a California Court of Appeal in A.M. v. Albertsons, 2009 WL 2986423 (Cal. App. 1 Dist., Sept. 18, 2009). The court stated, “Once a reasonable accommodation has been granted, then the employer has a duty to provide that reasonable accommodation.” Id. at *6. The A.M. v. Albertson’s court ultimately upheld a $200,000 jury verdict for the plaintiff based upon one instance in which the employer failed to provide her with the prior agreed-upon accommodation. Id. at *7. An employer should not assume that its obligation to provide accommodations is fleeting or can be addressed by calling certain accommodations “temporary.”
B. An Employer Should Consider Reassignment a Last Resort and Make Time Off and Reduced Hours Adjustments First.
Courts do not favor demoting an employee or sending him or her to a career “Siberia” as a result of limitations requiring reasonable accommodations. On the contrary, reassignment is considered an accommodation of “last resort” and adjustments to work schedules should be considered first. See, e.g., Spitzer v. The Good Guys, Inc. (2000) 80 Cal.App.4th 1376, 1389 (citing Aka v. Washington Hospital Center (D.C. Cir. 1998) 156 F.3d 1284, 1304, and acknowledging a duty to reassign a disabled employee "who cannot be otherwise accommodated"); Cravens v. Blue Cross and Blue Shield of Kansas City (8th Cir. 2000) 214 F.3d 1011, 1019 (relying on Aka, 156 F.3d at 1301, to conclude that "reassignment is an accommodation of last resort"). See also 29 C.F.R. App. § 1630.2(o) (EEOC's interpretive guidelines provide that “reassignment should be considered only when accommodation within the individual's current position would pose an undue hardship.”).
The California Court of Appeal upheld a jury verdict of $1,990,385 in compensatory damages, $1,200,000 in punitive damages against the defendant, and $7,000 in punitive damages against the defendant’s CEO in a case where an employer failed to reasonably accommodate an employee undergoing breast cancer treatment by allowing her to reduce her hours worked in the office. See McGee v. Tucoemas Federal Credit Union, 153 Cal. App. 4th 1351, 1355-1356 (2007), cert. denied 128 S.Ct. 1890 (2008). Following the refusal to reasonably accommodate her disability, McGee was demoted, lost her medical insurance, and received a pay cut that resulted in a 50% loss of income. Id. at 1356. The court reasoned that the punitive damages were not excessive in light of defendants’ pattern of behavior and failure to accommodate McGee’s disability before demoting her. Id. at 1362.
Among other themes, McGee drives home the point that if reassignment is necessary, then the employee should be reassigned to a comparable position, when possible. See also, e.g., Pattison v. Meijer, Inc., 897 F. Supp. 1002, 1007 (W.D. Mich. 1995) (“the employer may reassign the employee to a lower graded and paid position [only] if it is not possible to accommodate the employee in the current position and if no comparable positions are vacant or soon to be vacant.”).
C. An Employee May Be Able to Perform the Essential Functions of a Position Even if a Modified Work Schedules or Time Off Must Be Provided.
Employers may sometimes argue that “full-time work” or attendance without additional days off is an “essential function” and that, if an employee cannot do these, he/she is not a Qualified Individual with a Disability, as required for protection under the California and federal anti-discrimination laws. This approach may be unsuccessful for an employer, if it cannot show that it would suffer an undue hardship with the needed accommodations.
In Norris v. Allied-Sysco Food Services, Inc., 948 F. Supp. 1418 (N.D. Cal. 1996), Magistrate Judge Wayne Brazil let stand a jury verdict of $300,000 in favor of a plaintiff whose requests for the reasonable accommodation of either a part-time or work-from-home schedule were denied. Id. at 1421-1422. The court analyzed the “essential functions” of her job, which predominantly included the administrative and clerical tasks of record-keeping and communication with corporate officers and merchandisers, as well as occasional field sales. Id. at 1427. The court concluded that a reasonable jury could find that the essential functions of the job were administrative and clerical. Id. at 1431. Consequently, a reasonable jury could have also found that “Norris’ array of medical problems—back pain, chronic fatigue syndrome, neck pain, irritable bowel disease, urinary incontinence, and stress—would have made it difficult for her to put in full days of work or to adhere strictly to a regular work schedule” and that she would have been reasonably accommodated by being permitted to work part-time and from home. Id. at 1431.
On the other hand, in Raine v. City of Burbank, 135 Cal. App. 4th 1215, 1218 (2006), the plaintiff was a law enforcement officer who injured his knee and subsequently had difficulty running, jumping, kneeling, and lifting. Id. Significantly, the plaintiff conceded that these activities were essential to his position as a school patrol officer. Id. He was temporarily given an entirely different job at the department’s front desk, but when he was unable to return to his position, the defendant refused to extend the temporary position to a permanent one, and the plaintiff was terminated. Id. Because there was no reasonable accommodation which would allow the plaintiff in Raine to perform the essential job duties of his police officer position, and his temporary reassignment was much more than a modification of his original position, the Raine case is distinguishable from a case in which an employee has requested a mere schedule change.
As such, in general, a restriction on work hours does not affect an “essential function” of the employee’s position to the point that accommodating the employee’s disability would create a “new” job. If the employee is capable of performing all requisite job tasks, and the restriction is merely a matter of schedule, then the employer should provide the requested accommodation unless there is a demonstrated undue hardship. Employees should argue that work in excess of 40 hours is not a job function at all, for example, but a matter of time on duty and workload, which can be redistributed to other employees without undue hardship. Even if the number of hours on duty is viewed as a function, schedule requirements for employees’ positions may be viewed by a court as “marginal” rather than “essential” functions of a position. See 29 C.F.R. § 1630.2(n)(2)(ii).
D. An Employer Must Prove that Significant Difficulty or Expense Prevents it From Making a Time Off or Scheduling Adjustment Accommodation.
To avoid its obligation to provide a reasonable accommodation for an employee’s disability, an employer must establish that it would be an undue hardship to do so. 42 U.S.C. 12112(b)(5)(A); Cal. Gov. Code § 12940(m). See also Spitzer, 80 Cal. App. 4th at 1389-1390 (describing employers’ high burden of proof in this regard); Stoll v. The Hartford, 2006 WL 3955826, at *9 (S.D.Cal. Nov. 6, 2006) (“responsibility squarely lies with defendant to establish . . . there simply was no vacant position within the employer’s organization for which the disabled employee was qualified and which the disabled employee was capable of performing with or without accommodation . . . .”) (internal citations omitted).
To prevail on an undue hardship argument, an employer must show that accommodating an employee’s disability would require significant difficulty or expense, when considered in light of factors including, among others: the nature and cost of the accommodation needed; the employer’s overall financial resources; the number of persons employed by the employer; the impact of such accommodation upon the operation of the employer’s facility; the number, type, and location of the employer’s facilities; and the employer’s types of operations, including the composition, structure, and functions of the employer’s workforce; the geographic separateness, administrative, or fiscal relationship of the facility or facilities in question to the employer. 42 U.S.C. § 12111(10)(B); see also Cal. Code Regs. § 7293.9.
Generally, based on these guidelines, a Fortune 500 corporation with thousands of employees and a wide variety of employment opportunities will struggle to make a colorable argument that accommodating an employee’s disability would require significant difficulty and expense. Furthermore, an employer which has already allowed an employee to perform the essential functions of his/her job with a reduced schedule on a “temporary” basis will have difficulty showing an undue hardship, and is likely barred from asserting an undue hardship defense regarding an accommodation it already provided, which it is obligated to continue. See A.M., 2009 WL 2986423 at *6. Consider how offensive this discriminatory tactic would be, when applied to other types of accommodations, e.g., providing a person with quadriplegia with adaptive computer hardware, but labeling it “temporary” and then removing such hardware.
Yet, as to a time off accommodation, courts have not required employers to keep an employee on the rolls indefinitely who is unable to work. See, e.g., Green v. State, 42 Cal. 4th 254, 258 (2007) ("the law allows the employer to discharge an employee with a physical disability when that employee is unable to perform the essential duties of the job even with reasonable accommodation."). See also Dudley v. California Dept. of Transp., 213 F.3d 641, at **2 (9th Cir. 2000) (unpublished) (citing Nowak v. Sf. Rita High School, 142 F.3d 999, 1004 (7th Cir.1998)) ("The ADA does not require an employer to accommodate an employee who suffers a prolonged illness by allowing him [or her] an indefinite leave of absence"); Norris, 948 F. Supp. at 1421 (argument that indefinite leave cannot be a reasonable accommodation is supported by case law); Hanson v. Lucky Stores, Inc., 74 Cal. App. 4th 215, 226-227, (1999) ("Reasonable accommodation does not require the employer to wait indefinitely for an employee's medical condition to be corrected.").
Employees should be specific in time off and reduced hours requests, to avoid the argument that the accommodation they seek would create an undue hardship, like an indefinite leave of absence.
If you are a disabled employee who has suffered an adverse employment action based on a request for time off or a modified work schedule, contact Bryan Schwartz (Bryan@BryanSchwartzLaw.com) today.
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