Employment & Labor Insider

Question 2: Which of the following disability accommodations does an employer at least have to be prepared to consider under the ADA?

A. Displacing a current employee to reassign an employee with a disability.

B. Creating a vacant job for an employee with a disability.

C. Making an accommodation that would be perceived by co-workers as unfair.

D. Promoting an employee as a reasonable accommodation.

E. Accommodating someone who is “regarded as” having a disability but does not have an actual disability.

ANSWER: C. Even if the accommodation might not be well-received by co-workers, the employer would have to remain open to making it if it was an effective accommodation that would let the employee with a disability perform the essential functions of the job. Employers are generally not required to make “accommodations” A, B, D, or E.

Question 3: Melinda, a data entry clerk, needs time off during her work day to express milk for her three-month-old baby. Her employer gives her 20 minutes of unpaid time off, assigns her an unused cubicle without a door, and tells her to send an email to her co-workers when she is using the cubicle, warning them to stay away until she is through. In what ways has the employer failed to comply with its “lactation accommodation” obligations under the Nursing Mothers Act?

A. None. The employer has fully met its obligations under the NMA.

B. The employer has failed to provide Melinda with a blanket or shawl that she can use to cover herself up while she expresses milk.

C. The employer gave her 20 minutes, but if Melinda needed more than 20 minutes, including preparation and clean-up/storage, it would be required by law to give her more time.

D. The employer did not pay Melinda for her time spent expressing milk.

E. The employer did not give Melinda a private location with a locked door.

F. C and E.

G. B, C, D, and E.

ANSWER: F. Under the Nursing Mothers Act (which amended the Fair Labor Standards Act), the employer would be required to give Melinda as much time as she needs, and that time must include reasonable prep time and reasonable storage and clean-up time in addition to the time spent actually expressing milk. Twenty minutes may be enough for that, or it may not be. The location must be private (not a bathroom) with restricted access. (It’s also not cool expecting her to announce to everyone in the office that she is getting ready to express breast milk!) However, the time can be unpaid if the employee is non-exempt under the FLSA. (If the employee is FLSA-exempt, the employer is not required to offer lactation breaks, but if it does, it cannot dock the employee for the time.)

Question 4: Leon is a devout Baptist working at a plant that has 24/7 operations. Leon tells you that he cannot work at all on Sundays because he believes Sunday is a day of rest and it would be a sin to perform productive work on that day. He is willing to use his accrued vacation time for those days, or to work extra during Monday through Saturday. You have hundreds of other Baptist employees, some of whom take off Sunday mornings long enough to go to church but then come to work, and others who don’t take Sundays off at all. You tell Leon that he cannot have Sundays off “because the Baptist Church doesn’t require Baptists to take all of Sunday off.” You tell him that you are willing to let him take off the time necessary to attend Sunday services. If Leon files a charge with the Equal Employment Opportunity Commission, you will win.

A. True

B. False

ANSWER: False. You would be required to at least try to accommodate Leon’s sincerely held religious belief. Because Baptists make their own determinations as individuals regarding their religious obligations, the fact that some Baptists handle this differently is not relevant and certainly does not mean that Leon’s belief is not sincere or legitimate. (There is no such thing as a “Baptist Church” with a catechism, dogma, or other rules that

its members are instructed to follow.) Assuming you have plenty of employees who can work in Leon’s place on Sundays, and that there is no other undue hardship, you would be expected to accommodate him.

Question 5: You are the owner of a child care center that has 30 employees. A toddler teacher, Janice, is four months pregnant and brings you a note from her doctor saying that she is restricted from lifting more than 10 pounds for the duration of her pregnancy. You already offer light duty to employees who have on-the-job injuries, and you accommodate lifting restrictions for employees with disabilities as required by the Americans with Disabilities Act. If you accommodate these other “restricted” employees, you must offer similar accommodations to Janice for her pregnancy-related restriction.

A. True

B. False

ANSWER: True. It’s possible to make an argument that work-related injuries and ADA-qualifying disabilities are different from pregnancy-related restrictions, but that is not at all clear after the Supreme Court’s 2015 decision in Young v. UPS. If you don’t want to be a legal “test case,” you should try to accommodate Janice’s restrictions.

Question 6 (BONUS!): Because toddlers still like to be carried and weigh a lot more than 10 pounds, you are struggling with how best to accommodate Janice’s lifting restriction. What should be your first step?

A. Fire Janice.

B. Require Janice to take a leave of absence until after her baby is born.

C. Begin the “interactive process” with Janice and brainstorm with her about ways to accommodate her lifting restriction, given the requirements of her job and what assistance is available.

D. Give Janice blanket permission to let the toddlers sit on the floor and cry their eyes out when they want to be picked up.

E. Reassign Janice to the receptionist desk until her baby is born.

ANSWER: C, obviously!

HOW’DJA DO?

All six correct: Awesome! You can perform the essential functions of VP-HR, with or without a reasonable accommodation!

4-5 correct: Great! You are a “qualified individual”!

2-3 correct: Hmm. We may need to engage in the “interactive process.”

0-1 correct: Eeek! You are an undue hardship! (*just kidding*)