3 simple tips for responding to disability accommodation requests
If you are a parent (or plan to become one) you probably have (or will) try to teach your bouncing bundle(s) of joy, and sources of future anxiety, what you consider to be your pearls of wisdom for getting through life.
I am blessed to have a daughter Lauren, now 36, who decided to keep a record of what she calls “Frankisms.”
The list includes more than a few that reflect our generational divide. Few were created by me, but she had never heard them and they required a bit of explanation.
As I read a recent decision from the United States Court of Appeals for the Eighth Circuit, three Frankisms inspired this article.
All three help to explain why judgment was entered in favor of an employer accused of failing to accommodate an employee’s disability.
Kendall v. Zoltec Corporation
Angela Kendall worked for Zoltec as a Production Operator. A job that required her to set up and operate equipment used to process carbon fiber.
After a brief absence related to an on-the-job injury, Ms. Kendall returned to work and eventually provided a doctor’s note asking that she be allowed to sit during her shift to accommodate the sciatica caused by her injury.
Zoltec granted the request and allowed Ms. Kendall to sit during her shifts.
Several months later, Zoltec asked for and received an updated doctor’s note. The note again stated that Ms. Kendall could work while seated and could not crawl under equipment.
Ms. Kendall then met with Zoltec’s Human Resources staff to discuss the status of her medical restrictions and accommodation.
During the meeting with HR, Ms. Kendall was told that even though her restrictions did not inhibit her performance, they were inconsistent with Zoltec’s policy that Production Operators needed to stand for at least 12 hours and the policy needed to be enforced.
Because of Ms. Kendall’s inability to stand for an extended period, Zoltec placed her on medical leave, and she promptly applied for short-term disability benefits.
In the STD application, Ms. Kendall’s health care provider stated, among other things, that she could not stand for more than 10 minutes, crawl under machinery, or lift more than 10 pounds. The provider also stated that she could not work for five months, and her condition would be reevaluated at that time.
While she was on leave, Zoltec terminated Ms. Kendall’s employment because she had exhausted her leave allotment under the Family and Medical Leave Act, had no foreseeable return to work date, and had represented that she could not return to work unless Zoltec allowed her to work with accommodations that the company could not make.
Guess what? Ms. Kendall sued for disability discrimination.
The district court dismissed the lawsuit on summary judgment, and the Court of Appeals agreed for reasons that my daughter would understand.
Frankism No. 1: The devil is in the details.
One of the reasons for terminating Ms. Kendall was her inability to stand for 12 hours, which Zoltec claimed was an essential function of her job.
According to the Eighth Circuit, the factors involved in determining the essential functions of a job include the employer’s judgment, the written job description, the consequences of not requiring the employee to perform the functions, and the current work experience of incumbents in similar jobs.
According to the Court of Appeals, Zoltec’s job description demonstrated that being a Production Operator was physically demanding and required standing during the entirety of a 12-hour shift.
The court noted that before and after Ms. Kendall’s injury, Zoltec management had issued “no sitting” reminders to all Production Operators and, except for one disputed example, there was no evidence of operators’ being allowed to sit while performing their jobs. Other than Ms. Kendall.
Failing to pay attention to details and complexities of situations can lead to failure. In the world of employment litigation, failure is calculated with dollars. Lots of them.
Having up-to-date detailed job descriptions, consistent with business necessity and adhered to by all employees, can pay huge dividends when dealing with a request for accommodation. Not having one invites litigation to determine the essential functions of the job and whether reasonable accommodations are possible.
You may not be in crisis mode now, but do you have written descriptions for all jobs? If so, when is last time you compared them to the realities of the workplace and what your managers were allowing regarding their performance?
Frankism No. 2: No good deed goes unrewarded.
Ms. Kendall claimed that standing was not an essential function of her job because Zoltec allowed her to sit while performing her duties and did the same for another employee.
The Eighth Circuit rejected this argument and held that “an employer does not concede that a job function is ‘non-essential’ simply by voluntarily assuming the limited burden associated with a temporary accommodation.”
This holding is not unique to the Eighth Circuit. Other federal courts of appeal have held that employers should not be punished for doing more than the law requires because that could discourage them from doing so in the future.
Zoltec allowed Ms. Kendall to sit for several months and terminated her only after it became clear that she would have to be permanently relieved of the essential function of standing for a 12-hour shift.
“No good deed goes unpunished” is a cynical twist on the proverb “no good deed goes unrewarded.”
Zoltec’s willingness to work with Ms. Kendall was a good deed, and her attempt to punish the company for it was rejected.
Frankism No. 3: Luck is the residue of design.
This is one of my favorites. It was originated by a 17th century poet, but it is more commonly attributed to Branch Rickey, former General Manager of the Brooklyn Dodgers and the man who signed Jackie Robinson to his first big league contract.
According a 1946 article in The Sporting News, Mr. Rickey said that “luck is a fact but should not be a factor. Good luck is what is left over after intelligence and effort have combined at their best. Negligence or indifference are usually reviewed from an unlucky seat.”
The outcome in Kendall v Zoltec epitomizes this philosophy. A well-crafted, accurate job description, coupled with uniform enforcement, and a healthy dose of good deeds were the ingredients to spark the little bit of luck needed for a favorable outcome.
The bigger picture.
Regardless of the context, whether it be accommodating a disability or taking an adverse employment action, employers serve their best interests by rigorously paying attention to details and trying to do the right thing. When those two ingredients are combined, they are likely to spark the bit of “luck” needed to succeed.
If you don’t, “Katie bar the door.” You may need to “run from pillar to post” trying to “herd cats” only to see your defenses “fold like a cheap suit,” which isn’t pretty.
(These are Frankisms 4, 7, 9 and 11 from Lauren’s list.)
