Employment & Labor Insider

Interesting decision this week from a three-judge panel of the U.S. Court of Appeals for the Second Circuit. A high school math teacher (we’ll call her “Ms. Plantagenet”) had post-traumatic stress disorder. Years earlier, her doctor wrote a note saying she needed two 15-minute breaks per day (one in the morning, and one in the afternoon) during periods when she wasn’t responsible for teaching or dealing with the kids. The breaks, according to her doctor, would help her keep under control what sounds like very severe stress.

(According to the court’s decision, Ms. Plantagenet had to be admitted for psychiatric care three times, had a stress-induced stutter, and had nightmares so bad that they caused her to throw up.)

But apparently she was a good teacher and was able to make it through the work day even when she didn’t get the 15-minute breaks.

When she first brought in the doctor’s note, the school accommodated her and allowed her to leave campus for the two 15-minute breaks per day. However, a new administration took over, and they made a rule that teachers could not leave campus during these free periods. When Ms. Plantagenet did it anyway – apparently assuming she could because she had been granted an accommodation – she was reprimanded for being insubordinate.

During the 2019-20 school year – COVID time, but before the schools shut down completely – there were not enough people who could monitor her classroom during what would have been her afternoon break periods. Ms. Plantagenet took the breaks as often as possible anyway but said that the fear that she was breaking the rules just increased her stress.

Ms. Plantagenet eventually sued the school for failure to accommodate. A federal judge in New York granted the school’s motion for summary judgment on the ground that Ms. Plantagenet had admitted that she could perform the essential functions of her job without the off-campus breaks.

Ms. Plantagenet appealed, and in this week’s decision, the Second Circuit ruled that she might be able to prevail on her claim under the Americans with Disabilities Act even though she could perform the essential functions of her job without a reasonable accommodation. So the case will go back to the lower court, which will decide whether the school has some other defense to the failure to accommodate claim.

Here's what the appeals court said about the reasonable accommodation obligation:

• The Americans with Disabilities Act says that a “qualified” individual with a disability is someone who can perform the essential functions of the job with or without a reasonable accommodation. According to the panel, this means that employees who can perform the essential functions of their positions without accommodation may be entitled to accommodation anyway. 
• “If Congress had wanted employers to make only necessary accommodations, rather than reasonable ones, it could have said so.” (Emphasis added by me.)
• “Generally speaking, ‘[p]er se rules are unreliable in the disability context.’” No disagreement there.
• “An employee may qualify for an accommodation even if it is not strictly necessary to her performance of the essential functions of the job.”

The burning question, of course, is when -- if ever -- can an employer refuse a reasonable accommodation that isn't an undue hardship based on the fact that the employee doesn't need it to do the job?

In my opinion, the panel decision could have done more to address that issue. But they did cite some cases from other courts that helped. 

In one case, from the U.S. Court of Appeals for the First Circuit, the plaintiff had Tourette Syndrome, attention deficit/hyperactivity disorder, and major depression, but worked in a retail store and was apparently functioning just fine. After a couple of lead people resigned, he was required to work as many as 100 hours a week, and his conditions worsened. His doctor recommended that he be put on a schedule of 9 hours a day, 5 days a week (that's 45 hours a week for us math-challenged folks). The employer, whose official minimum weekly requirement was 50 hours a week, refused to make the accommodation and eventually terminated the plaintiff's employment.

At trial, the plaintiff argued that he could have worked the store minimum of 50 hours a week, and that the medical restriction applied only to regularly scheduled hours. The store's lawyers then argued that the plaintiff didn't need reasonable accommodation at all because he testified that he could have done the job. The store won, but the First Circuit granted the plaintiff a new trial. According to the appeals court, the fact that the plaintiff could have pushed himself to work at least the 50-hour minimum did not mean that he was not eligible for reasonable accommodation. 

In another case cited by the Second Circuit panel -- this one from the District of Columbia -- the plaintiff was an amputee working in an after-school program in a three-story building with no elevators. He asked for a classroom on a lower floor and also for a classroom aide. (All the other teachers had classroom aides.) The school moved him to the third floor and refused to provide the aide. The plaintiff was able to keep teaching, but with no aide and the requirement that he stand for long periods and walk (including up and down stairs), his pain worsened. A federal judge granted summary judgment to the employer on the ground that the plaintiff could perform the essential functions of his job and therefore didn't need accommodation, but the D.C. Circuit reversed. According to the appeals court, "A reasonable jury could conclude that forcing [the plaintiff] to work with pain when that pain could be alleviated by his requested accommodation violates the ADA."

Putting all of these decisions together, my take for employers is this:

If a reasonable accommodation would let an employee work more safely, without pain or with less pain, or without aggravating symptoms related to a disability, the ADA might require the employer to make the accommodation.

Unless doing so would be an undue hardship. 

This is so even if the employee can "power through" and get the essential functions of the job done without the accommodation.

Makes sense to me.