5 reasonable accommodations an employer never dreamed it would have to make

I know you're all poring over the Affordable Care Act, now that we have to comply with it, and trying to decide whether Chief Justice John Roberts is an evil turncoat, or a hero, or a "double agent" for the ACA's opponents . . . or for its advocates. (That's the trouble with those darned double agents.)

The heck with all that. Consider this a study break. Here are five ADA reasonable accommodations that I bet you never dreamed you'd have to make -- each one is 100% guaranteed true.

Disclaimer: Please be aware that I'm not making light of people with the medical conditions or religious beliefs described anywhere in this post.

1. No no-fault attendance policy. According to the U.S. Equal Employment Opportunity Commission, which sued Verizon (the telephone company, not the wireless company) in a massive nationwide class action, you DO have to bend your no-fault attendance policy to accommodate employees whose absences are caused by disabilities. Verizon paid $20 million to settle the case before it was even filed.

2. Extra time to take a promotional examination. Dan Schwartz of the excellent Connecticut Employment Law Blog has reported that the City of Stamford, Connecticut, got nailed a few years ago for not allowing a firefighter with Attention Deficit Disorder to have extra time to complete an examination required for promotion. The City said that time was of the essence when fighting a fire, but the state Human Rights Office contended that the City didn't present enough evidence to support its position.

3. A window office. Potential for abuse? Ya think? A teacher in Wisconsin won a jury trial, recently affirmed on appeal, in which she alleged that she should have been assigned a classroom with windows because of her seasonal affective disorder. The teacher started out in a room with a window and then asked to teach a different grade, whose classroom happened to be on the interior of the building. After a short time in the new classroom, she experienced symptoms and submitted a psychiatrist's note requesting that she move to a place with direct sunlight. What probably hurt the school most in this case was that one teacher with a window room was willing to swap with the plaintiff, and there was a vacant classroom with windows that the school was just "holding" for potential expansion in the future.

Please check out our sister blog, Employee Benefits Unplugged, for the latest on the Supreme Court's decision mostly-upholding the Affordable Care Act. And Constangy, Brooks & Smith will be holding a webinar on the decision and the implications for employers on July 12. We hope you can join us!

4. A miniature horse. OK, you don't have to give your employee a mini-horse because that would be personal equipment or devices, which employers are not required to provide under the ADA. However, recent guidelines from the U.S. Department of Justice, which administers the "public accommodation" provisions of the ADA, say that public businesses must normally accept miniature horses, as well as dogs, as service animals. Some disabled people who are Muslim use mini-horses because dogs are considered unclean. Thanks to Eric Meyer of The Employer Handbook. Apparently a few non-Muslims prefer horses, too, for reasons that are unclear. Thankfully, the government rule says that a business can refuse a mini-horse if the horse is not housebroken or is a mini-bucking bronco. An additional positive: if your employee uses a mini-horse as a service animal because of his or her religious beliefs, then you're getting two reasonable accommodations for the price of one!

5. Transfer to a different job, even if more qualified non-disabled candidates are available. There is a split in the circuits on this - so be sure to check your own jurisdiction before you do anything you'll regret later. But the EEOC and some federal courts have said that if an employee needs a transfer to another vacant position because of a disability, and if the disabled employee meets the minimum requirements for the new job, the employer must transfer the disabled employee in preference over non-disabled candidates who are better qualified.

As they say, you can't make this stuff up (warning: bad language at the link). Next week I'll follow up with five reasonable accommodations that an employer never (well, hardly ever!) has to make. Now you can go back to reading the health care legislation so you can tell me what we have to do in 2014

Robin Shea has 30 years' experience in employment litigation, including Title VII and the Age Discrimination in Employment Act, the Americans with Disabilities Act (including the Amendments Act). 
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