ADA - Is this a "workplace accommodation"?
ks1
12 Posts
An employee has asked to modify her hours - not as an accommodation, but on our standard form for requesting a change in work hours. However, she has stated as a reason that due to a back injury in an auto accident last year, she has pain when she sits for long periods without being able to get up and move around. She says that if she can start work at 7:30 instead of 8 a.m., she will spend less time in traffic and therefore have less pain. (She has stated that the pain is not an issue at work, apparently because she can stand and move around while at her desk). The division she works in does not want to do this, as the employee works in a customer service type function where the phones are answered 8 to 5 and it would be a hardship to them to have a person missing from 4:30 to 5 to take calls.
My thinking is this is not a "workplace accommodation," since it relates to her traveling to and from work, not her job. I want to tell her that she is certainly free to leave home earlier to avoid heavy traffic, and that she could then read or do other personal activities up until her 8 a.m. start time (we have other employees who do this, arriving early because they car pool, for example). But I am also aware of cases where people with manic-depression were able to get their work hours adjusted because the medication makes them groggy in the early morning (ie, start at 9 instead of 8). I don't know if any of these cases involved "customer service" type hours, though, and I am thinking that this is still not the same as a "commuting accommodation."
Any thoughts?
My thinking is this is not a "workplace accommodation," since it relates to her traveling to and from work, not her job. I want to tell her that she is certainly free to leave home earlier to avoid heavy traffic, and that she could then read or do other personal activities up until her 8 a.m. start time (we have other employees who do this, arriving early because they car pool, for example). But I am also aware of cases where people with manic-depression were able to get their work hours adjusted because the medication makes them groggy in the early morning (ie, start at 9 instead of 8). I don't know if any of these cases involved "customer service" type hours, though, and I am thinking that this is still not the same as a "commuting accommodation."
Any thoughts?
Comments
Have you considered another position in the company that allows for flex time that this employee may move to?
We have had a simular request. What we did do is setup an area in the building where employee who arrive early can go. This way they are not at their desk and could be asked to do something from a supervisor or manager before their starting time.
This might sound cold but we as employers are not responsabile for to and from a work sight.
Good luck.
But before addressing change in the work schedule and reasonable accommodation under ADA, the issue of modifying the work hours based merely upon an employee's request needs to be cleared up. I assume that when any employee makes a request that it is seriously considered, and operational needs are evaluated. In this case, the operting unit considered the impact to its operation and colcuded that working different hours than what have already been set is not do-able (because of those needs). I assume it has not modified any other employee's work hours to the hours the employee's requesting. And that the employee has indicated that no other work hours would help (i.e., there is nothing to be "negotiated" here under the company's policy for changing work hours).
That then leaves the questions assuming that the employee is ADA-qualified, is changing work hours a reasonable accommodation envisioned under ADA and would it cause an undue hardship, again, as envisioned by ADA.
Under ADA, there is no clear definition of "reasonabe accommdation." However, EEOC's regulations on ADA do provide that a reasonable accommodation is an modification or adjustment to the work environment or the manner in which the job is performed that enables the employee with a disability to perform the essential duties of the job; or that enables the employee with a disability to enjoy equal benefits and privleges of employment as similarly situated, non-disabled employees.
Under ADA and EEOC regulations modified work schedule is an example of a reasonable accommodation. Whether it would be in this individual of course remains to be seen, let alone whether it would constitute an undue hardship or whether there could be other reasonable accommodations that could be implemented that would meet the same purpose as the one the employee is seeking.
Remember, ADA and EEOC expect the employer and the employee to engage in a good faith effort to identify and implement reasonable accommodations -- as a problem-solving effort. An out-of-hand rejection by the employer without going through an assessment is often "fatal" to the employer's position if EEOC comes "aknockin'." Since you are basing your position not on factual information but on intrepretation of what constitutes "reasonable accommodation" I strongly suggest you run it by legal counsel.
I think that modifying work hours to help mobility-impaired individuals get to work can be considered reasonable accommodation under ADA. For example, if an employee had to take public transportaiotn to work and standing in a crowded commuter train or bus posed a difficulty for her or him (impeding efficiency of work when the employee arrived), while modifying the work hours would remove that difficulty, then why wouldn't it be the same for an indvidual who has to sit for long periods of time in rush hour traffic?
While you say she can leave for work earlier and then wait around for a couple of hours, would that be considered "reasonable" if you were to claim that was an accommodation the company was willing to make? I suspect it may not be.
Is the employee saying that there is no impact on the job when she arrives in the morning after having suffered back pain while riding in the car?
I don't understand what the half hour issue is. It doesn't seem to be that out of line on the face of it. Are you sure that there are NO emplyees who come to work later than 8 in the section? Notice that I said later than 8. Are there NO employees who take longer than one hour for lunch (assuming that the required start time is 8 a.m. the employee must be three unleast until 5 p.m.).Remember, your position is that the 8 to 5 schedule is INVIOLATE because the section MUST have all staff there during those hours to answer phone calls. Make sure with the manager exactly what he is demanding of the employees in that section -- he may tell you that he wants employees there at 8 for phone coverage but then no pay attention to what happens later in the day to ensure that phone coverage.
Then you move into the concept of "undue hardship. And that is something more stringent to meet that must mere inconvenience to the employer or customers.
There's a lot more going to establish undue hardship on the employer than just "inconvencience" -- there must be significant idfficulty or expense to the emplyer if the reasonable accommodation were to be implmented. Various factors have to be considered: such as the nature and cost of the accommodation; the nature of the particular operations, including the number of people involved; the effect on expenses and resources; the effect on operation, the composition, structure and functions of that workforce. Also, in this case would the implementation of the requested reasonable accommodation be unduly disruptive to the operation, other employees, or customers.
I would not be so quick to reject the request for reasonable accomodation at this point on a position that changing the work hour for her by 30 minutes is unreasonable or would cause an undue hardship.
First, evaluate whether in fact the employee is disabled under ADA. She may not be. But if she is, then look at a range of possible accommodations that are reasonable.
You may wind up still denying it or denying any accomodation because she isn't disabled under ADA, or there are no accommodations that are reasonable, or that if implemented the accomodation, she is requesting, would in fact cause an undue hardship.
From what I understand, EEOC will be more likely to accept an employer's denial if it has fairly and carefully gone through the interative process with the employee instead of rejecting the request out of hand. EEOC will rely initially on factual information. The legalities I would, again, leave to legal counsel to determine.
Just a quick thanks for taking the time to present so much clear information and advice. This is the stuff that forums are made of!
Jessica