October 28, 2020
ADA Reasonable Accommodation – Courts Confused?
That’s what seven of the 13 judges on the 10th U.S. Circuit Court of Appeals recently said about the U.S. District Court from the District of Colorado. “[T]he court was likely mistaken or confused” about the reasonable accommodation provisions of the Americans with Disabilities Act (ADA). I will say, this was a question that had never crossed my mind. I read the court’s (79 page) decision and agreed with their reasoning. Then I read the (55 page) dissent and got those judge’s points, as well! Here’s the hypothetical.
You have three employees in the same job classification. They all have the same minimum productivity standard. One of the three is an employee with a disability. He asks for a reasonable accommodation to help him meet that standard. You decline his request. You also tell him, “That’s OK.” You tell him he can meet a lower productivity standard and will incur no corrective action.
Did you violate the ADA when you refused the employee’s request for a reasonable accommodation? Or does the employee need to show some adverse employment action as a result of that refusal?
In the case, the majority ruled against the employer, holding it violated the ADA when it declined the request. Some of my favorite phrases were their description that… But six judges jointed in the dissenting opinion, saying the plaintiff needed to show something more. Then, two of those six did not completely agree with the other four. Now who’s confused?
Lesson Learned? If you are risk adverse, do not rely on this case next time an employee asks you for a reasonable accommodation. Even if the refusal alone did not violate the ADA, what about employee relations and morale? How are our other two, hypothetical employees going to feel about you, their employer and their coworker who gets a lighter work load? Get more information. Get HR to engage the employee in an interactive to determine what accommodation is needed and whether you can provide it or not.