Your employee asks for a 4-day workweek instead of 5 as an accommodation of a disability. Do you have to grant it? Can you deny it? Is a 5-day work-week an essential job function? Is a 4-day workweek a reasonable accommodation of a disability? Maybe and maybe.
If yes, when is it a reasonable accommodation? How can you tell? What happens if it is a reasonable accommodation and you deny the request?
How can you not be allowed to determine what your company’s workweek looks like?
Let’s explore. Read on…
Yes, as always, I’ve got a real-life case example, involving Costco. Spoiler alert: Costco lost the initial battle. Here, in a nutshell, is what went down:
Costco lost a summary judgment motion on this very issue. Now a jury will decide it in the case of a Costco cashier. After a car accident that left the cashier with permanent injuries her doctor restricted her hours to no more than 4 days a week (she had always been part-time) and limited her lifting.
Previously Costco accommodated those restrictions. Then a new manager came along and made changes, requiring all cashiers, part-timers included, to work 5-day weeks. Based on that, Costco deemed the cashier unable to perform essential job functions and placed her on leave for a year (the maximum that Costco allowed). When her leave was up, Costco terminated her. So she sued claiming failure to accommodate under the ADA.
The court ruled that whether a 5-day work week was an essential job function was a disputed issue of fact that a jury must decide (unless, of course, the parties settle). So basically, the court said that a 4 instead of 5-day workweek could be a reasonable accommodation of a disability. It depends on the specific facts. Whenever an employee requests an accommodation of a disability you must do, as the EEOC calls it, “an individualized assessment” to determine if the requested accommodation is reasonable under the specific circumstances. This is also known as “engaging in the interactive process”. It appears Costco, with its new manager, did not do that.
But isn’t attendance typically an essential job function? Yes, but what constitutes “attendance” will differ depending on specific circumstances. As with determining whether a requested accommodation is “reasonable, whether working 5 days instead of 4 is “essential” to a job, also depends on specific circumstances.
Here is Costco’s problem: Costco had been accommodating the cashier and apparently only stopped when a new manager came on board. On the one hand, that would seem to suggest that a 5-day workweek is not an essential function. On the other hand, a jury having access to all relevant facts could conclude otherwise — but that requires going to trial and having a jury decide. In other words, summary judgment, where an employer effectively gets the case dismissed is not appropriate here, because there are too many facts in dispute. Only when there is no dispute of key factual issues can a judge apply law to facts and make a ruling, rendering a jury trial unnecessary.
But as I often do, I see a bigger issue and would like to zoom out for a moment:
Like many disability accommodation cases, this one arose out of a new manager that decided to make changes. To me, it raises several questions.
First, was the manager made aware that this cashier’s workweek was a disability accommodation? If yes, has this manager received training on this issue? Either way, if the manager wanted to make changes were they truly necessary for business/operational reasons or was s/he simply looking to establish his/her authority?
For that matter, who was managing this manager and what oversight did the manager’s boss have or exercise here? What if any discussion happened when the manager made the changes?
It appears that Costco offered an alternative accommodation that required some intense physical tasks that the cashier did not feel she could perform. While that suggests to me that there was some attempt to accommodate it also suggests that Costco may not have looked at whether a 5-day workweek was really an essential job function.
Whatever the ultimate result, let this case serve as a warning to employers to: 1. inform new managers of any restrictions/accommodations with any of their direct reports; 2. ensure managers have some training on disability accommodations; 3. work with new managers who want to make changes to see if they may conflict with disability, pregnancy, religious or similar accommodations.
I think I’ve made my point so I’ll stop here — for now.
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.
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