From the desk of Melanie Whetzel, M.A., CBIS, Lead Consultant – Cognitive/Neurological Team
A computer programmer is denied the accommodation to telework temporarily, even though she can completely do her job from home. The employer claims that if they allow her the privilege they would have to allow it to all employees. “What is fair for one is fair for all.”
An employer refuses to engage in the accommodation process that involves a request from an employee with epilepsy for a change in the attendance policy due to seizures because he says that everyone wants more days off and this employee is no different. “We aren’t in the business of giving employees special treatment.”
The HR department of a large employer dismisses an accommodation request from an employee to work a flexible schedule because she says, “We aren’t going to open that can of worms. If we do this for you, then everyone is going to want it.”
An employee confronts her supervisor with a request to be provided an opportunity to work from home as one of her coworkers is now doing. Although there is no formal policy that allows telework, this employee states, “What is available for one employee should be available to all of us.”
Are these appropriate responses to accommodation requests? Should employers deny accommodations based on their feeling that if provided, the accommodation could cause morale issues for coworkers? And what is the employer’s proper response to employees who have questions about why a coworker may be receiving what they perceive to be special treatment? These are tough questions for sure, but ones that the Equal Employment Opportunity Commission (EEOC) has addressed in its guidance Enforcement Guidance: Reasonable Accommodation and Undue Hardship Under the Americans with Disabilities Act.
“What is fair for one is fair for all.”
The duty to provide reasonable accommodation is a fundamental statutory requirement because of the nature of discrimination faced by individuals with disabilities. Although many individuals with disabilities can apply for and perform jobs without any reasonable accommodations, there are workplace barriers that keep others from performing jobs they could do with some form of accommodation. These barriers may be physical obstacles (such as inaccessible facilities or equipment), or they may be procedures or rules (such as rules concerning when work is performed, when breaks are taken, or how essential or marginal functions are performed). Reasonable accommodation removes workplace barriers for individuals with disabilities.
“We aren’t in the business of giving employees special treatment.”
It is a reasonable accommodation to modify a workplace policy when necessitated by an individual's disability-related limitations, absent undue hardship. But, reasonable accommodation only requires that the employer modify the policy for an employee who requires such action because of a disability; therefore, the employer may continue to apply the policy to all other employees.
Granting an employee time off from work or an adjusted work schedule as a reasonable accommodation may involve modifying leave or attendance procedures or policies. For example, it would be a reasonable accommodation to modify a policy requiring employees to schedule vacation time in advance if an otherwise qualified individual with a disability needed to use accrued vacation time on an unscheduled basis because of disability-related medical problems, barring undue hardship. Furthermore, an employer may be required to provide additional leave to an employee with a disability as a reasonable accommodation in spite of a "no-fault" leave policy, unless the provision of such leave would impose an undue hardship.
In some instances, an employer's refusal to modify a workplace policy, such as a leave or attendance policy, could constitute disparate treatment as well as a failure to provide a reasonable accommodation.
“We aren’t going to open that can of worms. If we do this for you, then everyone is going to want it.”
That may be true! Employees may see a coworker’s flexible schedule as being desirable. But other employees with similar needs may find the very same accommodation could also be effective for them. And might they be entitled to an accommodation as well? If another employee asks about having a particular accommodation or workplace change extended to them, the employer would have the same right to ask that employee why the change is needed. If it is needed for reasons due to a medical condition, then the employer would go through the interactive process to determine if the individual is covered under the ADA, what accommodations may be needed because of the limitations encountered, and if those accommodations are reasonable.
An employer does not have to provide a reasonable accommodation that would cause an "undue hardship." Generalized conclusions will not suffice to support a claim of undue hardship. Instead, undue hardship must be based on an individualized assessment of current circumstances that show that a specific reasonable accommodation would cause significant difficulty or expense.
An employer cannot claim undue hardship based on employees' fears or prejudices toward the individual's disability. Nor can undue hardship be based on the fact that provision of a reasonable accommodation might have a negative impact on the morale of other employees. Employers, however, may be able to show undue hardship where provision of a reasonable accommodation would be unduly disruptive to other employee's ability to work. For example, an employee who is the lead liaison between a very busy government agency and a security firm would need to be at work at the specified times that these two entities work together. An adjusted schedule would not work for this employee, as it would limit coworkers’ ability to perform their jobs.
“What is available for one employee should be available to all employees.”
An employer may certainly respond to a question from an employee about why a coworker is receiving what is perceived as "different" or "special" treatment by emphasizing its policy of assisting any employee who encounters difficulties in the workplace. The employer also may find it helpful to point out that many of the workplace issues encountered by employees are personal, and that, in these circumstances, it is the employer's policy to respect employee privacy. An employer may be able to make this point effectively by reassuring the employee asking the question that his/her privacy would similarly be respected if s/he found it necessary to ask the employer for some kind of workplace change for personal reasons.
Since responding to specific coworker questions may be difficult, employers might find it helpful before such questions are raised to provide all employees with information about various laws that require employers to meet certain employee needs (e.g., the ADA and the Family and Medical Leave Act), while also requiring them to protect the privacy of employees. In providing general ADA information to employees, an employer may wish to highlight the obligation to provide reasonable accommodation, including the interactive process and different types of reasonable accommodations, and the statute's confidentiality protections. Such information could be delivered in orientation materials, employee handbooks, notices accompanying paystubs, and posted flyers. Employers may wish to explore these and other alternatives with unions because they too are bound by the ADA's confidentiality provisions. Union meetings and bulletin boards may be further avenues for such educational efforts.
As you can see, there are more effective employer responses than some of those highlighted above. Education is the key. As employers develop a better understanding of their rights and responsibilities under the ADA, they will undoubtedly be able to respond more appropriately when employees ask for accommodations. When in doubt, employers should always feel free to contact JAN for guidance.