From the desk of Tracie DeFreitas, M.S., CLMS, Lead Consultant — ADA Specialist
No good deed goes unpunished is a familiar adage that sometimes echoes in the minds of employers that are reluctant, but inclined, to go beyond compliance with the Americans with Disabilities Act (ADA) to retain an employee with a disability who is qualified. But is this sentiment true – Are employers held to a higher standard for acting in good faith, or with compassion, or for doing more than simply what is required under the ADA to keep employees with disabilities working? Equal Employment Opportunity Commission (EEOC) guidance and court rulings seem to support the notion that employers that act with good intentions and want to do more than just check the ADA compliance box, will not be held liable under the ADA for setting a precedent to be followed in all future accommodation situations.
To frame the issue another way, employers sometimes share their concerns with JAN about setting a precedent when providing accommodations that fall outside of the realm of what might be considered reasonable under the ADA. Uneasiness about setting a precedent is expressed by employers in a variety of ways. Some share concerns about providing accommodations in general, or about making reasonable modifications that all employees (with and without disabilities) will seek, due to accommodation contagion (e.g., stand-up workstations, working at home, flexible scheduling, etc.), and about the risk associated with going above and beyond to allow workplace flexibility to retain valued employees.
JAN offers employers practical guidance to help dispel the idea that making accommodations, acting in good faith, or going the extra mile lend credence to the no good deed goes unpunished adage. Apprehension about providing accommodations and setting a precedent might be dismissed if some practical points are remembered:
1. An employee who does not have, or has not had, a disability is not entitled to receive reasonable accommodations under the ADA.
What this means for employers: The idea that, “if I do this for one employee, I’ll have to do it for everyone,” is dispelled knowing that employers need only provide accommodations under the ADA when individuals qualify to receive them. To qualify to receive accommodations, per ADA requirements, an individual must have, or have had, a disability – an impairment that substantially limits a major life activity.
Accommodation situations should be handled on a case-by-case basis, through an interactive process that yields information about the individual’s impairment, limitations, work-related barriers, and need for accommodation. Upon receiving a request for accommodation, an employer that engages in an interactive process will obtain information to determine if the employee is entitled to receive reasonable accommodations. No impairment – no ADA disability – no accommodation obligation. May an employer accommodate, regardless? Yes. Is there an obligation to do so under the ADA? No.
2. The fact that an employer gives something to one person does not create an obligation to provide the same exact accommodation to someone else.
What this means for employers: When an accommodation is provided to one employee, an employer is not required to necessarily provide the same exact accommodation to another employee. To illustrate this point, if Beck is permitted to work at home one day a week, for a disability-related reason, Joe is not automatically entitled to work at home as well. If Joe requests to work at home, the employer may engage in an interactive process to determine if Joe is entitled to receive accommodation under the ADA. This process entails learning more about whether Joe’s work can be completed remotely, and to what extent, if working at home is a reasonable accommodation, or if it will pose an undue hardship for the employer.
One type of accommodation may not be reasonable in all situations. While one accommodation may be reasonable at one time, the same accommodation may not be reasonable, or may pose an undue hardship in another instance. Working at home is a good example of an accommodation that requires some forethought to determine if this type of alternative work arrangement is feasible. The essential duties of some jobs can be performed entirely remotely, while in other jobs, only some duties can be performed in this way, or none at all. Thus, when the opportunity to work at home is requested as an accommodation, a case by case analysis is required to determine if this type of accommodation is reasonable, given the essential job duties. Employers are not required to remove essential job duties to permit employees to work at home as an accommodation, but can.
Information on the ADA, in regulations, technical assistance, and formal EEOC guidance, does not expressly address the issue of setting a precedent – of requiring the same exact accommodations for everyone – but does articulate the idea that a defense of undue hardship may need to be made to deny an accommodation when the same accommodation cannot be granted. For example, the ADA title I regulations, Section 1630.15(d) Defense To Not Making Reasonable Accommodation, states, "…Whether a particular accommodation will impose an undue hardship for a particular employer is determined on a case by case basis. Consequently, an accommodation that poses an undue hardship for one employer at a particular time may not pose an undue hardship for another employer, or even for the same employer at another time…”
Ultimately, it’s important to remember that accommodation situations may share similarities in terms of why an accommodation is needed, or the type of accommodation that is requested. Still, when all the facts are considered, each situation will have unique circumstances. What may be needed as an accommodation for one individual, may not necessarily be reasonable for someone else, or each time the same accommodation is requested.
3. Workplace flexibility can benefit everyone and can reduce the need for employees with disabilities to request accommodations, thereby limiting employer concerns about setting a precedent.
What this means for employers: Workplace flexibility, like modified or flexible scheduling and remote work arrangements, is among the most frequently requested type of accommodation. Accommodations that fall into this category sometimes make employers pause, out of worry over accommodation contagion. This is when providing an accommodation for one employee may create expectations for other employees – where employees ask for the same adjustments they know others are receiving.
When employers offer workplace flexibility to employees as a general practice, the modifications are not considered workplace accommodations because employees with and without disabilities have access to a benefit or privilege that enables them to constructively manage work responsibilities, personal obligations, and medical needs. In this kind of situation, employees with disabilities have no need to ask for accommodations because making a schedule change is easy, or working from home is allowed and removes a barrier that might otherwise exist, etc. When workplace flexibility is available to all employees, this can strengthen employee morale, increase retention, limit requests for accommodation, and lessen employer anxiety over setting a precedent.
To expand on accommodation contagion, this issue sometimes arises in situations when employees are provided workstation equipment like ergonomic chairs and sit-stand workstations. JAN has received many inquiries from employers that have recognized an increase in accommodation requests after providing this type of equipment. When this happens, it may be useful to consider:
- Does the employer offer an ergonomic program through which all employees may request equipment? If so, then determine eligibility to receive equipment through that program, rather than as an accommodation. When employees with disabilities request equipment that would ordinarily be provided under this type of program, they shouldn’t be required to jump though extra hoops (e.g., the interactive process under the ADA) to receive the same equipment as employees without disabilities.
- If there’s no ergonomic program, refer to practical points 1 and 2 above; Is the employee entitled to receive accommodation for a disability-related reason, and is the accommodation something that is reasonable? The fact that an employer provides equipment to one employee does not automatically entitle other employees to receive the same equipment.
4. Employers can have legitimate business reasons for doing more than is required under the ADA. Write a compelling story that justifies these reasons. In other words… document, document, document.
What this means for employers: At their discretion, employers can make changes at work that are not required as accommodations under the ADA – like removing an essential job function, changing a supervisor, providing a personal use item, or reducing a production standard. These kinds of actions can be effective strategies for enabling employees with disabilities to be successful at work and can also be useful in helping employers meet their own business needs.
The EEOC makes several references to the discretion employers have to do more to retain employees than is required under the ADA. Support for this discretion is illustrated by the following examples of statements, taken from EEOC enforcement guidance on Reasonable Accommodation and Undue Hardship Under the ADA:
- “An employer never has to reallocate essential functions as a reasonable accommodation, but can do so if it wishes.”
- “While an employer is not required to eliminate an essential function or lower a production standard, it may do so if it wishes.”
- “An employer does not have to provide an employee with a new supervisor as a reasonable accommodation. Nothing in the ADA, however, prohibits an employer from doing so.”
It’s true, a precedent can be set in making modifications that go beyond EEOC’s interpretation of the ADA standards, but employers can have legitimate business reasons for going the extra mile. So, tell the story. Why did it make sense to temporarily remove an essential function at the time? Maybe the modification enabled the employee to return to work in six weeks instead of twelve, and in-turn, this saved the employer the cost of paying other employees overtime to fulfill the employee’s responsibilities during a leave of absence. Maybe, at the time, enough staff were available to take-on the added responsibility, for a short duration. Maybe the particular employee had institutional knowledge that affected the delivery of goods or services and their presence was critical to the business. Explain legitimate, nondiscriminatory, business reasons for doing more than is required at one time, in order to deny, or maybe even support, a request to do the same in the future.
A way to avoid a misunderstanding about going above and beyond to provide an accommodation, or the risk of an ADA claim, is to establish expectations upon approval of the accommodation. For example, if an essential function is to be removed temporarily, draft a temporary accommodation agreement that documents the fact that the function is essential and not required to be removed, but that the employer agrees to remove the function for a specified duration of time, and what to expect when the time limit ends or the employer uses its discretion to stop allowing the accommodation. JAN offers a sample temporary/trial accommodation approval form that may help.
To conclude, good deeds are not always punished when it comes to making changes that enable employees with disabilities to be successful at work. In particular, employers that use their discretion to provide modifications that go above and beyond ADA requirements are not penalized for acting in good faith, but should be prepared to provide a legitimate, nondiscriminatory reason for why accommodations are approved for some employees, and not others. EEOC support for employer discretion to do more than is required was noted previously, but courts also seem to support the idea that a benevolent employer will not be held liable for exceeding ADA requirements to provide accommodations. Examples of cases like Myers v. Hose, Hartwell v. Spencer, Knutson v. Schwan's Home Service, Inc., Lucas v. W.W. Grainger, Inc., and Amadio v. Ford Motor Co., demonstrate that employers can do more than is required under the ADA without setting a precedent that must be followed in the future, or being locked-in to allowing non-required accommodations forever.
Benevolence IS a virtue. Don’t be deterred from doing good deeds by the echoes of that pesky good deeds adage. Contact JAN for more information on this topic, and for practical guidance on the ADA, engaging in the interactive process, and providing accommodations.