How Are Reasonable Disability Work Accommodations Decided?

How do prove a failure to accommodation under the ADA?

To establish a failure-to-accommodate claim under Americans with Disabilities Act (“ADA”), an employee must present evidence: (i) that the employee was disabled, (ii) the employer had notice of her disability, (iii) the employee could perform the essential functions of her position with a reasonable accommodation, and (iv) the employer refused to make such accommodation. The third element requires evidence that the employee can perform the essential functions of the job with a reasonable accommodation. If the employee cannot perform the essential functions of the job, with or without a reasonable accommodation, then the employee will not be considered a “qualified individual” under the ADA and therefore would have no legal right to be given a disability accommodation.

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What is considered an essential job function under the ADA?

The ADA’s regulations provide us with seven different kinds of evidence that courts will consider to determine if a job function is really considered essential:

1. What the employer thinks are the most important job tasks.
2. Job descriptions written before looking for new employees.
3. How much time is spent on the job doing that task.
4. What happens if the person doesn’t do that task.
5. Agreements made by a group of workers and the employer.
6. The job experience of people who had the job before.
7. The current job experience of people doing similar jobs right now.

This is not an exhaustive list, meaning that courts can and do look to other evidence that may be presented by either the employee or the employer.

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What is considered a reasonable disability accommodation at work?

The ADA doesn’t have a strict definition for “reasonable accommodation.” Instead, it gives examples, such as changing job tasks, working part-time, or adjusting work schedules. The law emphasizes that these examples aren’t the only possibilities but are meant to show the range of options.

From the ADA’s language, courts and disability employment lawyers identified key principles about reasonable accommodation. Firstly, there’s a broad range of reasonable accommodations, reflecting the ADA’s illustrative rather than exhaustive nature. It means the law provides examples, but there could be more ways to accommodate someone with a disability. Secondly, what’s considered reasonable depends on the specific circumstances of each case. There isn’t a one-size-fits-all solution. Lastly, there can be multiple reasonable solutions, and employers have the discretion to choose the best one, even if it’s not exactly what the employee requested.

In other words, employers don’t have to provide the exact accommodation an employee asks for, but they should choose a reasonable solution. Even if it’s not perfect, as long as it makes sense for the situation, the law says a court can’t substitute its judgment for the employer’s choice. It’s all about finding a good solution, not necessarily a perfect one.

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What happens if an employee refuses to participate in the interactive process?

If an employee refuses to participate in the interactive process, it can have implications for their ADA rights because the interactive process is a crucial step in determining and providing reasonable accommodations for employees with disabilities. The interactive process is a cooperative effort between the employer and the employee to identify and implement reasonable accommodations. When the interactive process breaks down because of the employee’s refusal to discuss alternative accommodations, the employee will likely lose any claim for failure to accommodate under the ADA.

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Can you provide an example?

Let’s look at the recent case of Tartaro-McGowan v. Inova Home Health, LLC, No. 22-1825, 2024 WL 174357(4th Cir. Jan. 17, 2024), out of the Fourth District Court of Appeals. In this case, the COVID-19 pandemic caused a severe shortage of nursing staff at Inova Home Health in the spring of 2020, impacting patient care. In response, Inova required all internal staff, including clinical managers, to assist with direct patient care field visits until staffing improved. Essentially, the employer required all hands-on deck. Understandably, the company considered it the best solution during a critical time. Laura Tartaro-McGowan, a registered nurse, requested total exemption from field visits due to physical restrictions relating to chronic arthritis in her knees. Given the critical staffing issues it faced and the need to take care of patients, Inova denied the total exemption request. Instead, Inova offered alternative accommodations, including Tartaro-McGowan screening and selecting visits based on her comfort with the care need and the layout of the house. The employer also indicated that she could spread her visits out over the course of a week to lessen her physical load. The employer offered these accommodations four times, but the employee rejected them all. The employer then wrote to Tartaro-McGowan: “We want to work with you, and are therefore asking what form of additional accommodation, other than not going into the field (which is an essential function of your position), are you requesting?” She refused to provide any other accommodates accept her initial demand to be totally excused. After she was fired, the employee sued for disability discrimination, failure to accommodate, and wrongful termination under the ADA.

The court ruled that Inova’s proposed accommodations were reasonable, and Tartaro-McGowan’s insistence on complete exemption without proposing alternatives contributed to her loss in the case. The employee lost because the court held Inova’s actions to be reasonable under the circumstances of the pandemic, and Tartaro-McGowan’s refusal of reasonable alternative accommodations prevented her from prevailing.

The Fourth District Court of Appeals held:

The ADA requires reasonableness, not perfection. Reasonableness does not demand that an accommodation have an airtight solution to every contingency conceivable. Its dictates are tethered to the practical realities of each case, not boundless hypotheticals. And the practical realities here were that (i) Inova Home Health had a severe shortage of field nurses created by an unprecedented pandemic; (ii) patients needed to be seen; (iii) all internal staff were required to assist with direct patient care field visits as a result; (iv) there were several field duties that Tartaro-McGowan, an experienced field nurse, could perform within her physical limitations; and (v) by screening field assignments, Tartaro-McGowan had the ability to select those patients whose anticipated needs were compatible with her physical limitations. Given these practical realities, no reasonable jury could conclude that Defendants’ accommodation was unreasonable.

Perhaps Tartaro-McGowan would have a stronger argument had she actually given Defendants’ proposed accommodation a chance. If in practice it proved to be the case that unanticipated circumstances beyond Tartaro-McGowan’s physical ability arose with such frequency as to effectively render Defendants’ accommodation impracticable, she could have sought an alternative accommodation at that time. But having never tried to perform a direct patient care field visit using the accommodation made available to her, Tartaro-McGowan can offer only vague conjecture that Defendants’ proposed solution was not viable. That is not enough to defeat summary judgment. See Graves v. Lioi, 930 F.3d 307, 324 (4th Cir. 2019) (“[S]urviving summary judgment … requires evidence, not unsupported conjecture.”).

Id. at *11.

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What should I do if my employer will not give me a disability accommodation?

Because every situation is different, your best course of action is to call the right attorney to schedule a free and confidential consultation. (Read: What is the Spitz No Fee Guarantee?). Call our top employment lawyers in Ohio, Michigan, North Carolina, and Kentucky to get help now. Spitz, The Employee’s Law Firm and its experienced attorneys are dedicated to protecting employees’ rights and solving employment disputes.

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