“Waive” Goodbye to Employer Liability Under the ADA for Voluntary Accommodations of Essential Job Functions
May 22, 2014
An employer faces a difficult situation when a temporarily disabled employee who cannot perform his or her essential job functions requests an accommodation. This situation becomes significantly more complicated when the employee receives the “accommodation,” but never recovers enough to resume performing the essential job functions. Can the employer terminate the disabled employee without violating the Americans with Disabilities Act (“ADA”)? Recent case law strongly suggests the answer is “yes.”
The ADA generally prohibits an employer from discriminating against individuals on the basis of a disability. 42 U.S.C. § 12112(a). Protection under the ADA applies only to individuals “who, with or without reasonable accommodation, can perform the essential functions of the employment position that such individual holds or desires.” 42 U.S.C. § 12111(8).
An employer will be liable where the individual can satisfy the following facts: (1) he or she has a disability; (2) the employer had notice of the disability; (3) a reasonable accommodation by the employer would permit the disabled employee to perform the essential functions of the job; and (4) the employer refused to make such an accommodation, or the individual suffered an adverse employment decision due to his or her disability. E.g., Haneke v. Mid-Atl. Capital Mgmt., 131 F. App’x 399, 400 (4th Cir. 2005)
While these four facts appear rather straight-forward, employers know it is fraught with issues. Claims arising under the ADA are unique among various discrimination lawsuits because an employer legitimately may consider a disability when determining whether an employee is qualified for a particular position. Baker v. Potter, 294 F. Supp. 2d 33, 42 (D.D.C. 2003). This is because the ADA does not require an employer to reallocate “essential” job functions to accommodate an employee’s disability. Until recently, it was unclear whether an employer who voluntarily accommodates a disabled employee by temporarily terminating or suspending an essential job function effectively waives the job function.
This issue was recently addressed in a decision by the United States District Court for the District of Columbia. In Hancock v. Washington Hospital Center, Selena Hancock, a former medical assistant at Washington Hospital Center, brought suit against her former employer for allegedly violating the ADA. Ms. Hancock suffered from a nerve condition she began experiencing while employed with the hospital. She requested certain accommodations that prevented her from working triage; these included no lifting, bending and “no triage.” The hospital voluntarily accommodated these restrictions, even though both parties agreed that working in triage was an essential function of her job as a medical assistant. Ms. Hancock spent several weeks on “light duty.” Then, Ms. Hancock submitted a modified occupational health form that only restricted her to the twenty pound lifting limitation. Two months later, Ms. Hancock again submitted a health form that prevented her from performing any triage-related work for two weeks. After receiving this third occupational health form, the hospital terminated her. Ms. Hancock brought suit, claiming the hospital’s history of providing the accommodations to her waived its position that working in triage continued to be an essential function of her job.
After a jury verdict in favor of the hospital, she moved for judgment against the hospital as a matter of law. The court denied this motion and engaged in an insightful discussion of the recent trends of the ADA’s scope relating to defining essential job functions and the related issues of waiver. The district court summarily denied Ms. Hancock’s position that an employer can waive an essential function of an employee’s job for purpose of ADA coverage. The court explained that “an employee who cannot perform an essential function is not a qualified individual under the ADA, even if the employer previously chose to accommodate the employee by excusing the employee from performing the essential function.” Hancock v. Washington Hosp. Ctr., 87 Fed. R. Serv. 3d 556 (D.D.C. 2014). The court noted an accommodation, even if voluntarily provided by the employer in the past, which eliminates an essential function of the job, is per se unreasonable for purposes of the ADA. Id.
Moving forward, it is important for employers to understand that Hancock addresses a very narrow issue within the broad realm of the ADA, and they must still be careful when disciplining or terminating employees who have requested disability-related accommodations. While the parties in Hancock agreed triaging patients was an essential function of her job, many times the question of what constitutes an essential function of a job is a factual issue to be determined by a jury. It does indicate employers have a certain amount of flexibility to assist highly valued employees who need relief from the essential duties of their position without forever waiving the ability to require the employee perform those duties. Of course, employers who face this situation should be careful to consider the context-specific nature of ADA claims and work to identify what it considers to be the “essential” functions of each job.