Return to Work with Restrictions

I am dealing with an employee who ...

  1. Exhausted 12 weeks of FMLA & has since been on COBRA for benefits.
  2. Has been given 12 weeks of Unpaid Leave as a reasonable accommodation after FMLA.
  3. Is expected to return to work on Nov 2, 2016. 
  4. On Oct 28, 2016, Dr. released her with the folloing restrictions: cannot reach overhead & lift/carry more than 10 lbs. 
  5. She holds a custodian position.  The lifting required in this position is 35 lbs.
  6. The company has 26 employees total and is currently understaffed in the custodial area.

Does anyone have any ideas on how to prove undue hardship?

Comments

  • 5 Comments sorted by Votes Date Added
  • Sorry this is late but we just joined. I am not sure what state you are in, as that may require that we look at other laws besides the ADA (such as the FEHA here in California where I am). I don't know what you all decided to do but you handled things well. When it comes to a worker returning with restrictions, it's helpful to put on the workers' comp hat. Most employers will be quick to figure out how to get an employee to come back if they were out on WC. Even if they have to bring them back to count paperclips (exaggerating but not really). In the same way, when it's a non-industrial injury or illness, you can modify the job or transfer to a less strenuous position, be it an equivalent position or a lower level vacant position. EEOC's: https://www.eeoc.gov/eeoc/internal/reasonable_accommodation.cfm#C  ;(copy/paste it into your browser); other than that, it's all about job modification. If you have tried everything and there is no way to modify the position nor any equivalent or even lower level position to transfer the employee to either until the restrictions are lifted or permanently (which you have to document and have the employee sign off on agreeing to such an accommodation because they can turn it down), then you consider more leave, but if you can't do that, then it's a matter of how much longer this individual may need to be placed on leave, as that is the last option. If they only have one more month, do it. If three or more, consider whether setting such a precedent (4 or more months of accommodated leave) will cause damage to your business. Regardless, the EEOC or DFEH if in California, will expect that if there is a near-foreseeable release to full duty or lifting of restrictions in the future, the employer should continue to accommodate with at least a leave of absence. However, the employer has to see if it can hold the employee's position, if not, then they need to find an equivalent position that they can reassign the employee to during her leave and reinstate her to this new position upon her release. If there is no equivalent position, then a lower level vacant position. In all these, the question is, can she perform the essential duties of her position WITH or without an accommodation? So even if you move her over to the mail room, for example, can she stuff envelopes and place them in the inboxes? If not, can she just sit down and do the stuffing while someone else does the other task? It's basically about thinking outside the box and if you were to be investigated, then showing you have done everything possible, will better support any decision for termination.

    In regard to undue hardship, our attorneys have very often proclaimed that trying to prove undue hardship in court is extremely difficult. Instead of undue hardship, you can center on the above to make your decision. But I will give you information here about what exactly constitutes undue hardship. Again, I don't know what you all ended up doing, but hopefully this helps for the future. I'll post it in separate comments because it's too long.


     

  • ALL ABOUT 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.(113) A determination of undue hardship should be based on several factors, including:

    o    the nature and cost of the accommodation needed;

    o    the overall financial resources of the facility making the reasonable accommodation; the number of persons employed at this facility; the effect on expenses and resources of the facility;

    o    the overall financial resources, size, number of employees, and type and location of facilities of the employer (if the facility involved in the reasonable accommodation is part of a larger entity);

    o    the type of operation of the employer, including the structure and functions of the workforce, the geographic separateness, and the administrative or fiscal relationship of the facility involved in making the accommodation to the employer;

    o    the impact of the accommodation on the operation of the facility.(114)

    The ADA's legislative history indicates that Congress wanted employers to consider all possible sources of outside funding when assessing whether a particular accommodation would be too costly.(115) Undue hardship is determined based on the net cost to the employer. Thus, an employer should determine whether funding is available from an outside source, such as a state rehabilitation agency, to pay for all or part of the accommodation.(116) In addition, the employer should determine whether it is eligible for certain tax credits or deductions to offset the cost of the accommodation. Also, to the extent that a portion of the cost of an accommodation causes undue hardship, the employer should ask the individual with a disability if s/he will pay the difference.

    If an employer determines that one particular reasonable accommodation will cause undue hardship, but a second type of reasonable accommodation will be effective and will not cause an undue hardship, then the employer must provide the second accommodation.

    An employer cannot claim undue hardship based on employees' (or customers') fears or prejudices toward the individual's disability.(117) 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 employees's ability to work.

    Example A: An employee with breast cancer is undergoing chemotherapy. As a consequence of the treatment, the employee is subject to fatigue and finds it difficult to keep up with her regular workload. So that she may focus her reduced energy on performing her essential functions, the employer transfers three of her marginal functions to another employee for the duration of the chemotherapy treatments. The second employee is unhappy at being given extra assignments, but the employer determines that the employee can absorb the new assignments with little effect on his ability to perform his own assignments in a timely manner. Since the employer cannot show significant disruption to its operation, there is no undue hardship.(118)

    Example B: A convenience store clerk with multiple sclerosis requests that he be allowed to go from working full-time to part- time as a reasonable accommodation because of his disability. The store assigns two clerks per shift, and if the first clerk's hours are reduced, the second clerk's workload will increase significantly beyond his ability to handle his responsibilities. The store determines that such an arrangement will result in inadequate coverage to serve customers in a timely manner, keep the shelves stocked, and maintain store security. Thus, the employer can show undue hardship based on the significant disruption to its operations and, therefore, can refuse to reduce the employee's hours. The employer, however, should explore whether any other reasonable accommodation will assist the store clerk without causing undue hardship.


  • 2.    Must an employer modify the work hours of an employee with a disability if doing so would prevent other employees from performing their jobs?

    No. If the result of modifying one employee's work hours (or granting leave) is to prevent other employees from doing their jobs, then the significant disruption to the operations of the employer constitutes an undue hardship.

    Example A: A crane operator, due to his disability, requests an adjustment in his work schedule so that he starts work at 8:00 a.m. rather than 7:00 a.m., and finishes one hour later in the evening. The crane operator works with three other employees who cannot perform their jobs without the crane operator. As a result, if the employer grants this requested accommodation, it would have to require the other three workers to adjust their hours, find other work for them to do from 7:00 to 8:00, or have the workers do nothing. The ADA does not require the employer to take any of these actions because they all significantly disrupt the operations of the business. Thus, the employer can deny the requested accommodation, but should discuss with the employee if there are other possible accommodations that would not result in undue hardship.

    Example B: A computer programmer works with a group of people to develop new software. There are certain tasks that the entire group must perform together, but each person also has individual assignments. It is through habit, not necessity, that they have often worked together first thing in the morning.

    The programmer, due to her disability, requests an adjustment in her work schedule so that she works from 10:00 a.m. - 7:00 p.m. rather than 9:00 a.m. - 6:00 p.m. In this situation, the employer could grant the adjustment in hours because it would not significantly disrupt the operations of the business. The effect of the reasonable accommodation would be to alter when the group worked together and when they performed their individual assignments.

    3.    Can an employer deny a request for leave when an employee cannot provide a fixed date of return?

    Providing leave to an employee who is unable to provide a fixed date of return is a form of reasonable accommodation. However, if an employer is able to show that the lack of a fixed return date causes an undue hardship, then it can deny the leave. In certain circumstances, undue hardship will derive from the disruption to the operations of the entity that occurs because the employer can neither plan for the employee's return nor permanently fill the position. If an employee cannot provide a fixed date of return, and an employer determines that it can grant such leave at that time without causing undue hardship, the employer has the right to require, as part of the interactive process, that the employee provide periodic updates on his/her condition and possible date of return. After receiving these updates, employers may reevaluate whether continued leave constitutes an undue hardship.

    In certain situations, an employee may be able to provide only an approximate date of return.(119) Treatment and recuperation do not always permit exact timetables. Thus, an employer cannot claim undue hardship solely because an employee can provide only an approximate date of return. In such situations, or in situations in which a return date must be postponed because of unforeseen medical developments, employees should stay in regular communication with their employers to inform them of their progress and discuss, if necessary, the need for continued leave beyond what might have been granted originally.(120)

    Example A: An experienced chef at a top restaurant requests leave for treatment of her disability but cannot provide a fixed date of return. The restaurant can show that this request constitutes undue hardship because of the difficulty of replacing, even temporarily, a chef of this caliber. Moreover, it leaves the employer unable to determine how long it must hold open the position or to plan for the chef's absence. Therefore, the restaurant can deny the request for leave as a reasonable accommodation.

    Example B: An employee requests eight weeks of leave for surgery for his disability. The employer grants the request. During surgery, serious complications arise that require a lengthier period of recuperation than originally anticipated, as well as additional surgery. The employee contacts the employer after three weeks of leave to ask for an additional ten to fourteen weeks of leave (i.e., a total of 18 to 22 weeks of leave). The employer must assess whether granting additional leave causes an undue hardship.

    4.    Does a cost-benefit analysis determine whether a reasonable accommodation will cause undue hardship?

    No. A cost-benefit analysis assesses the cost of a reasonable accommodation in relation to the perceived benefit to the employer and the employee. Neither the statute nor the legislative history supports a cost-benefit analysis to determine whether a specific accommodation causes an undue hardship.(121) Whether the cost of a reasonable accommodation imposes an undue hardship depends on the employer's resources, not on the individual's salary, position, or status (e.g., full-time versus part-time, salary versus hourly wage, permanent versus temporary).


  • 5.    Can an employer claim undue hardship solely because a reasonable accommodation would require it to make changes to property owned by someone else?

    No, an employer cannot claim undue hardship solely because a reasonable accommodation would require it to make changes to property owned by someone else. In some situations, an employer will have the right under a lease or other contractual relationship with the property owner to make the type of changes that are needed. If this is the case, the employer should make the changes, assuming no other factors exist that would make the changes too difficult or costly. If the contractual relationship between the employer and property owner requires the owner's consent to the kinds of changes that are required, or prohibits them from being made, then the employer must make good faith efforts either to obtain the owner's permission or to negotiate an exception to the terms of the contract. If the owner refuses to allow the employer to make the modifications, the employer may claim undue hardship. Even in this situation, however, the employer must still provide another reasonable accommodation, if one exists, that would not cause undue hardship.

    Example A: X Corp., a travel agency, leases space in a building owned by Z Co. One of X Corp.'s employees becomes disabled and needs to use a wheelchair. The employee requests as a reasonable accommodation that several room dividers be moved to make his work space easily accessible. X Corp.'s lease specifically allows it to make these kinds of physical changes, and they are otherwise easy and inexpensive to make. The fact that X Corp. does not own the property does not create an undue hardship and therefore it must make the requested accommodation.

    Example B: Same as Example A, except that X Corp.'s lease requires it to seek Z Co.'s permission before making any physical changes that would involve reconfiguring office space. X Corp. requests that Z Co. allow it to make the changes, but Z Co. denies the request. X Corp. can claim that making the physical changes would constitute an undue hardship. However, it must provide any other type of reasonable accommodation that would not involve making physical changes to the facility, such as finding a different location within the office that would be accessible to the employee.

    An employer should remember its obligation to make reasonable accommodation when it is negotiating contracts with property owners.(122) Similarly, a property owner should carefully assess a request from an employer to make physical changes that are needed as a reasonable accommodation because failure to permit the modification might constitute "interference" with the rights of an employee with a disability.(123) In addition, other ADA provisions may require the property owner to make the modifications.(124)

    BURDENS OF PROOF

    In US Airways, Inc. v. Barnett, 535 U.S., 122 S. Ct. 1516 (2002), the Supreme Court laid out the burdens of proof for an individual with a disability (plaintiff) and an employer (defendant) in an ADA lawsuit alleging failure to provide reasonable accommodation. The "plaintiff/employee (to defeat a defendant/employer's motion for summary judgment) need only show that an 'accommodation' seems reasonable on its face, i.e., ordinarily or in the run of cases."(125) Once the plaintiff has shown that the accommodation s/he needs is "reasonable," the burden shifts to the defendant/employer to provide case-specific evidence proving that reasonable accommodation would cause an undue hardship in the particular circumstances.(126)

    The Supreme Court's burden-shifting framework does not affect the interactive process triggered by an individual's request for accommodation.(127) An employer should still engage in this informal dialogue to obtain relevant information needed to make an informed decision.


  • INSTRUCTIONS FOR INVESTIGATORS

    When assessing whether a Respondent has violated the ADA by denying a reasonable accommodation to a Charging Party, investigators should consider the following:

    \

    • Is the Charging Party "otherwise qualified" (i.e., is the Charging Party qualified for the job except that, because of disability, s/he needs a reasonable accommodation to perform the position's essential functions)?
    • Did the Charging Party, or a representative, request a reasonable accommodation (i.e., did the Charging Party let the employer know that s/he needed an adjustment or change at work for a reason related to a medical condition)? [see Questions 1-4]
      • Did the Respondent request documentation of the Charging Party's disability and/or functional limitations? If yes, was the documentation provided? Did the Respondent have a legitimate reason for requesting documentation? [see Questions 6-8]
      • What specific type of reasonable accommodation, if any, did the Charging Party request?
      • Was there a nexus between the reasonable accommodation requested and the functional limitations resulting from the Charging Party's disability? [see Question 6]
      • Was the need for reasonable accommodation related to the use of medication, side effects from treatment, or symptoms related to a disability? [see Questions 36-38]
    • For what purpose did the Charging Party request a reasonable accommodation:
      • for the application process? [see Questions 12-13]
      • in connection with aspects of job performance? [see Questions 16-24, 32-33]
      • in order to enjoy the benefits and privileges of employment? [see Questions 14-15]
    • Should the Respondent have initiated the interactive process, or provided a reasonable accommodation, even if the Charging Party did not ask for an accommodation? [see Questions 11, 39]
    • What did the Respondent do in response to the Charging Party's request for reasonable accommodation (i.e., did the Respondent engage in an interactive process with the Charging Party and if so, describe both the Respondent's and the Charging Party's actions/statements during this process)? [see Questions 5-11]
    • If the Charging Party asked the Respondent for a particular reasonable accommodation, and the Respondent provided a different accommodation, why did the Respondent provide a different reasonable accommodation than the one requested by the Charging Party? Why does the Respondent believe that the reasonable accommodation it provided was effective in eliminating the workplace barrier at issue, thus providing the Charging Party with an equal employment opportunity? Why does the Charging Party believe that the reasonable accommodation provided by the Respondent was ineffective? [see Question 9]
    • What type of accommodation could the Respondent have provided that would have been "reasonable" and effective in eliminating the workplace barrier at issue, thus providing the Charging Party with an equal employment opportunity?
    • Does the charge involve allegations concerning reasonable accommodation and violations of any conduct rules? [see Questions 34-35]
    • If the Charging Party alleges that the Respondent failed to provide a reassignment as a reasonable accommodation [see generally Questions 25-30 and accompanying text]:
      • did the Respondent and the Charging Party first discuss other forms of reasonable accommodation that would enable the Charging Party to remain in his/her current position before discussing reassignment?
      • did the Respondent have any vacant positions? [see Question 27]
      • did the Respondent notify the Charging Party about possible vacant positions? [see Question 28]
      • was the Charging Party qualified for a vacant position?
      • if there was more than one vacant position, did the Respondent place the Charging Party in the one that was most closely equivalent to the Charging Party's original position?
      • if the reassignment would conflict with a seniority system, are there "special circumstances" that would make it "reasonable" to reassign the Charging Party? [see Question 31]
    • If the Respondent is claiming undue hardship [see generally Questions 42-46 and accompanying text]:
      • what evidence has the Respondent produced showing that providing a specific reasonable accommodation would entail significant difficulty or expense?
      • if a modified schedule or leave is the reasonable accommodation, is undue hardship based on the impact on the ability of other employees to do their jobs? [see Question 42]
      • if leave is the reasonable accommodation, is undue hardship based on the amount of leave requested? [see Question 43]
      • if there are "special circumstances" that would make it "reasonable" to reassign the Charging Party, despite the       apparent conflict with a seniority system, would it nonetheless be an undue hardship to make the reassignment? [see Question 31]
      • is undue hardship based on the fact that providing the reasonable accommodation requires changes to property owned by an entity other than the Respondent? [see Question 46]
      • if the Respondent claims that a particular reasonable accommodation would result in undue hardship, is there another reasonable accommodation that Respondent could have provided that would not have resulted in undue hardship?
    • Based on the evidence obtained in answers to the questions above, is the Charging Party a qualified individual with a disability (i.e., can the Charging Party perform the essential functions of the position with or without reasonable accommodation)?