Title I of the Americans with Disabilities Act (ADA) and the Americans with Disabilities Act Amendments Act (ADAAA), requires an employer to provide reasonable accommodations for employees/applicants that are qualified individuals with disabilities. Which accommodations are reasonable and how can you tell? Unfortunately, there is no bright-line rule. Employers must make an individualized assessment. Normally when an employer does provide an accommodation and then stops doing so, the employer runs the risk of significant liability under the ADA/ADAAA (which from here forward I am just going to refer to as the ADA to make things easier). Could an employer discontinue an accommodation and not be liable? Yes, according to the United States District Court for the Western District of North Carolina. Read on to learn about when, why and how…
(image from proftesting.com)
I feel compelled to start by telling you that this is a Wal-Mart case. Now, some of you may know that I’ve written a number of posts on what we can learn from Wal-Mart, through its mistakes. (Click here for a review of one of them.) So, in the interest of fairness, I am going to acknowledge at the outset that Wal-Mart got this one right, in Moore v. Wal-Mart Stores East (U.S. Dist. Court, Western Dist N.C. 1/12/18).
What happened? Bobby Moore worked for Wal-Mart as a trailer truck mechanic, starting in October 2007 in its Shelby, North Carolina Transportation Office. In 2009, he was promoted to Parts Clerk, where he needed to safely and correctly organize, store and manage parts. His job also required him to lift and shelve products that often weighed in excess of 50 pounds. In June 2014, however, Moore suffered a stroke and took a 90–day leave of absence. The stroke primarily affected his left side including movement in his left arm and leg, facial drooping, slurred speech, and the loss of peripheral vision in his left eye.
Moore returned to work after his leave and extensive rehabilitation. While he could not fulfill all his essential job functions, his boss believed that he would improve and did not reprimand or otherwise discipline him. This went on for 15 months. Then Moore fell and he requested a reasonable accommodation. Wal-Mart found that he could not fulfill his essential job functions, so it denied the request but transferred him to a new position (which, it could be argued, was itself an attempt at a reasonable accommodation). Unfortunately, in the new position, he fared no better. After he made too many errors, Wal-Mart terminated his employment. Moore then sued, alleging discrimination under the ADA based on failure to provide a reasonable accommodation.
Now, Title I of the ADA is a rather broad, inclusive law. The courts are aware of that. The employer had already been providing an accommodation. Why then, did this court uphold the termination? First, the law makes it clear that its protections extend to qualified individuals with disabilities. The law then defines “qualified” individuals as those who with or without a reasonable accommodation can perform the job’s essential functions. The facts showed that Moore was, even with accommodations, unable to perform his essential job functions. In particular in his position as Parts Clerk he ultimately fell, a clear indication he could not safely perform his job. Wal-Mart prior to that fall was allowing him to stay in the job even though he was not performing all his essential functions. Wal-Mart then attempted to further accommodate him by transferring him to another position. He was unable to perform those essential functions either. While he clearly is an individual with a disability, he was not a qualified individual with a disability, and so the ADA’s protections were not available to him.
Moreover, the ADA requires an employer to provide reasonable accommodations. Even the EEOC has said that changing performance or production standards is not a reasonable accommodation. The ADA is also clear that direct threat to one’s own or others’ safety is a defense to a failure to accommodate claim. Moore was not able to perform the essential functions of either position, and in the Parts Clerk position allowing him to stay in it ultimately posed a direct threat to his own safety. The accommodation that he was receiving up until that time however, was that his employer looked the other way when he fell short of fulfilling the essential job requirements. Again, that is not a reasonable accommodation.
OK, let’s stop a moment and look at what the court was really saying here. Wal-Mart was providing accommodation for 15 months after Moore returned to work. Reasonable accommodations are supposed to enable an employee to perform his or her essential job functions. If the accommodation does not do that it is firstly, not effective, and secondly not reasonable. In fact it is really more of a personal benefit, which the ADA does not require. Secondly, if one cannot perform the essential functions of a job, even with a reasonable accommodation, s/he is not a qualified individual, and s/he therefore is not protected under the ADA/ADAAA.
Let me add a note of caution. Before you either stop providing or deny a requested accommodation, you still need to engage in the interactive process with the employee. That means you need to discuss the request, evaluate it, look for alternatives, and, if you are going to deny or stop providing the accommodation, document everything. Document what was discussed, what alternatives you offered or explored, the employee’s response, and your reasons for whatever decision you reached. This case could have gone very differently if Wal-Mart had not even entertained any discussion of accommodations. Wal-Mart won this one because it did engage in the interactive process, it did try to accommodate its employee and it had (and likely documented) valid reasons for eventually terminating Mr. Moore’s employment. This time Wal-Mart set the example of what to do, rather than what not to do. I believe a character on the popular T.V. series, The Sopranos once said, “Even a broken clock is right twice a day…”
Enough said — for now. See you next week!
Contents of this post are for educational/informational purposes only, are not legal advice, and do not create an attorney-client relationship. Consult with competent employment counsel in the state(s) in which you employ people with your specific questions.
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