Massachusetts Employment Law Letter

Don’t forget the “reasonable” in reasonable accommodations

Since the Americans with Disability Act Amendments Act (“ADAAA”) went into effect in 2009, it is rarely ever necessary for a court to consider whether the employee is “disabled” for purposes of the ADA:  even seemingly minor conditions like migraine headaches, anxiety, and high blood pressure are now considered disabilities under the amended law.  As a result, courts have shifted their focus from the employee’s condition to whether the employer complied with its obligation to provide a reasonable accommodation that would allow the disabled employee to perform the essential functions of his or her job. This shift in focus – from the employee to the employer – makes it all the more important for employers to identify and properly respond to accommodation requests, as two recent decisions in Massachusetts demonstrate.

Accommodations for autoimmune disease?                    

From 2005 to 2010, Jeanne Hochstetler worked as a technical writer for a software company that was ultimately acquired by IBM.  Hochstetler has Sjogren’s Syndrome, an autoimmune disease characterized by chronic fatigue and painful, swollen joints.  She claims that the disease causes her to have difficulty bending, climbing stairs, typing, standing, and driving.  To combat these symptoms, Hochstetler takes medication daily, but according to the lawsuit, the medicine wears off sometime after 5:00 p.m. and her doctor has advised her against taking a second dose.

In early 2009, Hochstetler was asked to set 12 goals for the upcoming year.  She claims that she informed her supervisors that she could not accomplish all 12 goals in a standard, 45-hour workweek due to her disability.  Hochstetler says that she was told that she would be expected to work as many as 70 hours per week if necessary to complete her goals, and that IBM’s human resources department would have to authorize any reduction in her hours.  Following that conversation, Hochstetler submitted a doctor’s note to the HR department requesting that she be permitted to work no more than 45 hours per week.  IBM approved the request for back-to-back six-month periods, but when Hochstetler again requested that her performance goals also be reduced, she claims that IBM instead increased her workload by giving her new, time-consuming tasks.

In February 2010, following a series of weak performance reviews, Hochstetler was one of 70 employees selected to be laid off.  She filed a charge of discrimination with the Massachusetts Commission Against Discrimination claiming that IBM failed to accommodate her disability and discriminated against her on the basis of her disability and her age.  She then withdrew the charge and filed suit in court.  IBM filed a motion asking the court to enter judgment in its favor before trial.  The trial court judge dismissed Hochstetler’s age and disability discrimination claims but allowed the reasonable accommodation claim to proceed to trial.  According to the judge, a jury could conclude that IBM’s agreement to reduce her hours was a failure to accommodate because it was coupled with its refusal to decrease her workload.

The decision means that a jury will now decide whether a reduction in Hochstetler’s workload would have enabled her to perform the essential functions of her position at IBM and whether such a reduction would have been a reasonable accommodation for IBM to make for her under the circumstances.  The case is Hochstetler v. IBM (Mass. App. Ct. 2013)

No “one size fits all”!

So what is a “reasonable accommodation”?  There is no “one-size-fits-all” definition.  What may be reasonable in one situation may be unreasonable in another, and vice versa – it all depends on the specific facts and circumstances.  Sometimes the employee’s needs are more obvious, but when an employee is unable to articulate precisely what he or she needs in order to continue to perform the essential functions of his or her job, and to enjoy the benefits of that job, employers can’t just shrug their shoulders.  The ADAAA requires employers to engage in a meaningful dialogue, to consider which of the employee’s functions are the “essential” ones, to think creatively about ways to accommodate the employee, and to implement any accommodations that do not constitute an “undue hardship.”  This may require making existing facilities more accessible; restructuring the employee’s duties and responsibilities; modifying the employee’s schedule; and acquiring new equipment.  Employers should also consider whether they can reassign the employee to a vacant position for which he or she is qualified if he or she is no longer able to do his or her current job because of a disability.

What do you need to know?

Now that you have an idea of what it means to make a “reasonable accommodation,” consider what IBM could have done differently to avoid a trial.  If you believe Hochstetler’s account of what happened, IBM could have taken a more active role in the interactive process.  Most importantly, IBM could have recognized Hochstetler’s initial request for a reduced schedule as a request for an ADAAA accommodation and used it as a springboard to open a dialogue with her about how her symptoms were impacting her ability to do her job.  Had they done so, they may have better understood Hochstetler’s concerns about her ability to accomplish the tasks that had been set for her.  And with that understanding, they may then have been in a better position to discuss Hochstetler’s goals for the year, and perhaps could have worked with her to determine which goals defined the essential functions of her job.  It could have turned out that Hochstetler could not perform the essential functions of her job even with a reduced schedule.  Or, IBM could have discovered that only non-essential goals would be compromised by the change in hours.  Unfortunately, however, it seems that conversation did not occur, and it will now be up to a jury to decide something that IBM and its employee might have been able to resolve internally.

Of course, it is impossible to predict what would have happened, but when it comes to the ADAAA, merely having the conversation goes a long way toward satisfying your obligations to your employees.  Another recent Massachusetts decision proves the point:

Accommodations for irritable bowel syndrome?

Lance Silvestris teaches English at the Tantasqua Regional Senior High School in Fiskdale, Massachusetts.  He suffers from irritable bowel syndrome and, in 2009, requested an accommodation that would allow him to use the restroom at unexpected times throughout the day.  In consultation with Silvestris, the school developed and implemented three different plans to try to accommodate his needs.  Initially, the school allowed Silvestris to call upon teachers in adjoining classrooms to cover his class for him when he needed to take a bathroom break.  However, Silvestris felt embarrassed and self-conscious about revealing his disability to his colleagues and having to ask them for coverage.  The school then provided Silvestris with a dedicated substitute teacher who was assigned to cover his classroom during his breaks and moved him into a bigger classroom to make the substitute less conspicuous.  Silvestris still was not satisfied, however, claiming that the presence of the substitute created questions and remained a source of embarrassment for him.  The school then returned him to his original classroom and reinstated the original plan but also added aides to assist the other teachers with providing coverage.  Despite these efforts, Silvestris filed suit, claiming that the school failed to accommodate his disability and caused him emotional distress.

Keep the dialogue open, and try to be flexible

The trial court dismissed Silvestris’ lawsuit before trial, and the Massachusetts Appeals Court recently affirmed that decision.  Pointing to the fact that the school offered Silvestris three, separate accommodation plans, the Appeals Court concluded that it would not be possible for a jury to find that the school either refused to provide Silvestris with a reasonable accommodation or failed to engage in the interactive process.  The court reasoned that school officials addressed Silvestris’ initial request for accommodation promptly and, further, when problems arose, the school showed that it was willing to work with him to find a solution. The case is Silvestris v. Tatansqua Senior Regional High School (Mass. App. Ct. 2013).

So, the next time one of your employees mentions a physical, mental, or emotional impairment, think about Ms. Hochstetler and Mr. Silvestris – your employee may not always qualify as disabled, and even if they do, there may be no reasonable accommodation, but you can greatly reduce your risk merely by having an honest, open conversation, keeping an open mind about ways to help the employee overcome work-related challenges, and leaving the lines of communication open.  If you need some guidance on the accommodation process, check with your labor and employment counsel.

Article By: Erica E. Flores, Esq.
Reprinted from the March 2014 issue of the  Massachusetts Employment Law Letter.