If you’re an employer, chances are, you’ve had to provide accommodations to at least one employee with a disability. The ADA requires it of employers with 15 or more employees. Corresponding state laws have similar requirements. Sometimes those requirements are more stringent than the ADA. Often the state anti-discrimination laws apply to employers with fewer than 15 employees.
When a request comes from a pregnant employee, then you may also have obligations under the Pregnancy Discrimination Act (PDA) – or a state counterpart.
What happens when you no longer wish to continue providing an accommodation, though?
In general, taking away disability and pregnancy accommodations you’ve already been providing is a BAD idea!
To be fair, if you have a legitimate reason, you can discontinue providing an accommodation. If you can prove that continuing the accommodation would pose an undue hardship on your company, your facility, or your department, you may then be able to discontinue the accommodation. To prove undue hardship under the ADA however, you would have to show that the accommodation would result in a significant expense or operational difficulty or safety issue. The usual costs of compliance are not an undue hardship.
Even then, you would also need to make good faith efforts to find another reasonable accommodation. That’s part of what the EEOC (which enforces the ADA) refers to as “engaging in the interactive process”. If you simply take away the accommodation and do nothing more, however, you are asking for trouble.
(The Pregnancy Discrimination Act requires you to provide to pregnant women any accommodation you provide to other similarly-situated individuals that are not pregnant, unless, again, you can prove that doing so poses an undue hardship. If you already provide the same or a similar accommodation to another similarly situated person who is not pregnant, however, you will probably have a hard time showing that doing so here would be an undue hardship.)
Here are 3 real-life examples:
AVI Seabar & Chophouse Restaurant agreed to pay $55k to a hostess after allegedly taking away a stool it had provided her between serving customers to help with pregnancy-related foot and back pain, demanding a doctor’s note and firing her when she gave one.
Total Systems Services, LLC allegedly denied a customer service worker with diabetes, hypertension, and anxiety’s request to work remotely — then fired her when she used medical leave. Her health conditions put her at higher risk of serious complications or death if she contracted COVID-19. She requested remote work after several colleagues tested positive for COVID.
Her job duties involved using the phone and computer, and meeting with supervisors and colleagues — all of which “could be completed remotely”. By the end of her leave, most employees in her department were working remotely but her employer still denied her request and she was forced to resign. The EEOC has sued on her behalf.
Carly Romero worked 7 years as a janitor for ISNW’s Janitorial Services Program in Vancouver, WA, earning praise from high-level managers. ISNW is a nonprofit that provides programs for people with disabilities and others to build self-reliance through educational, therapeutic, and employment services. Irony of ironies!
The employee developed a degenerative hip disease, and could no longer use a backpack vacuum, and asked to use an upright vacuum instead. The employer said “No”, but allowed employees at other sites to use do so. It also conditioned her return to work on a “100% release” from her doctor and then fired her. This organization might want to rethink its mission. Just sayin’…
The first case involved the Pregnancy Discrimination Act, which requires employers to treat pregnant employees the same as other employees who are request accommodations for non-pregnancy-related reasons.
I have to say it: Really folks? A stool? How difficult was it to keep the stool? How expensive? I’ll bet it cost less than $55k plus costs, plus legal fees. Again, just sayin’…
The other two cases are ADA claims.
Here are some takeaways:
1. Don’t take away any accommodation without a legitimate business reason.
2. ‘I don’ wanna’ is NOT a legitimate business reason. Neither is “policy” which often is another way of saying ”I don’ wanna’.
3. Don’t deny an accommodation to one person that you already provide someone else without offering an effective alternative unless you have a solid defense. Again, “I don’ wanna” won’t fly.
4. Employees don’t have to be 100% healed to return to work. They need only be able to perform essential job functions — either with or without a reasonable accommodation. So if an employee has been on leave and can return to work with some restrictions, don’t prevent them from returning –unless you want a lawsuit.
A little common sense and decency would have gone a long way in the three examples above.
Are you an employer interested in proactively addressing workplace challenges and company culture? Visit my website, http://www.janetteleveylaw.com to contact me for a complimentary 20-minute consultation.
Watch the latest video clip in my series, “Ask the Employer’s Lawyer: My Employee Has Exhausted All Her FMLA Leave Time. What do I do?
Watch my television interview on Good Morning HR with Mike Coffey on Mental Health and the ADA.
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