Can’t You Accommodate Me Like You’ve Done Before?Posted by on

Employers should tread carefully before withdrawing formal or “informal” accommodations from qualified employees with disabilities. In a string of recent decisions, the EEOC and several federal courts have held that employers violate the Americans with Disabilities Act (ADA)1 when they withdraw an accommodation that was successfully provided to a disabled employee for some period of time.2

Under the ADA, employers are required to provide reasonable accommodations—provide assistance to or make changes to a position or workplace—that enable qualified3 employees with disabilities to perform their job, unless doing so would cause an undue hardship. In this context, what is the outcome when an employer accommodates an employee with a disability, but then withdraws the accommodation, claiming that the accommodation was “unreasonable?” This often occurs when a new supervisor comes along and disagrees with the accommodation, or the employer concludes that the employee’s need for an accommodation is permanent. Ultimately, the issue in these cases is whether withdrawing an accommodation is reasonable under the ADA. Addressing this issue, the EEOC and a number of federal courts have recently precluded employers from asserting that an accommodation was no longer reasonable or that it caused an undue hardship when it had been successfully provided for some period of time.

In De John v. USPS, for example, a postal employee developed thrombophlebitis, which substantially limited his ability to stand. As an accommodation, the agency authorized the employee’s use of a chair, which enabled him to perform his job. After a year, a new manager removed the chair due to “safety hazards.” The Commission found, however, that because the chair had been used for over a year without a safety incident, the discontinuation of an effective accommodation constituted an unreasonable failure to accommodate.

Similarly, in Isbell v. John Crane, Inc., the district court found that a new supervisor’s withdrawal of a two year long accommodation and refusal to make changes to the hours policy was unlawful. In Isbell, the employer allowed an employee who suffered from ADD and bipolar disorder to arrive to work late (10 a.m.) because her medications took some time to take effect. Then a new supervisor came along and inexplicably withdrew her accommodation and also required the employee to report for work at 8:30 a.m. like everyone else. Although the employee submitted further documentation and a new request for her previous accommodation, the employer refused and ultimately terminated her for attendance violations.

In Isbell, the court noted that uniformity of treatment is precisely what the underlying purpose of the ADA rejects, and that the employer failed to provide an adequate reason for subjecting the employee to a one-size-fits-all hours policy. More importantly, the court highlighted that the plaintiff had been receiving the accommodation of a flexible start time for more than two years without difficulty. According to the court, because the employer had previously provided the accommodation of a later start time without any problems, it could not legitimately state that punctuality was an essential function of the job or that a later start time caused the employer an undue hardship. Therefore, the employer’s sudden replacement of the accommodation with a more onerous schedule constituted an unreasonable failure to accommodate.

In another case, Meinen v. Godfrey Brake Service & Supply, Inc., the district court held that an employer could not claim undue hardship in continuing to employ the plaintiff on a part-time basis, as it had done for 18 months. There, the plaintiff suffered from multiple sclerosis, and could only work up to two hours per day, three days per week. The employer allowed plaintiff to work at the parts counter on this part time basis for 18 months, until it terminated him. During this time, the employer created another part-time position to fill the need, and even held open a full time position for the plaintiff in anticipation of him returning to work full time. Noting that it is the employer’s burden to show undue hardship, the court concluded that the employer could not meet that burden under these circumstances.

Similarly, the Seventh Circuit in Miller v. Illinois Department of Transportation held that an employer was required to continue providing an accommodation it had informally provided in the past. There, the employee worked on a bridge crew but had an extreme fear of heights in unsecured environments, which he estimated kept him from performing less than 3% of his tasks. For years, the employer informally accommodated him by allowing other members of the bridge crew to handle those tasks. The employer also regularly allowed bridge team members to swap tasks according to their own limitations. One day, however, the employee was required to walk a bridge beam and suffered a panic attack, resulting in his hospitalization. Later, the employee filed a request for an accommodation that he not be required to work on bridge beams or other unsecured areas at heights above 25 feet, which was denied. After the district court granted summary judgment for the employer, the Seventh Circuit reversed and remanded, finding that Miller’s accommodation request did not require the employer to do anything it was not already doing, and that the jury should be able to consider the employer’s past flexibility in determining whether the accommodation request was reasonable. On remand, the jury found in favor of the plaintiff.

In sum, these cases show that employers may be exposed to liability under the ADA when an accommodation is provided for a period of time, but is suddenly withdrawn with no effective alternative in its place. Significantly, these cases also represent a change in case law under the ADA, particularly given that a number of courts—including the Seventh Circuit—previously held that no inference of reasonableness should be drawn from previously provided accommodations.4 It remains to be seen what future impact these cases will have, but they are nonetheless significant.

This blog was written by Alex Kutrolli.

[1] The anti-discrimination provisions of the ADA were incorporated into the Rehabilitation Act of 1973; therefore, this article is equally applicable to federal employees whose disability rights are governed by the Rehab Act.
[2] The accommodations discussed herein were all provided for at least one year, however, the EEOC and federal courts have not specifically discussed what length of time would qualify to preclude an employer from asserting that the previously provided accommodation was unreasonable or caused an undue hardship.
[3] A qualified individual or employee is one who holds the necessary degrees, skills and experience for the job, and who can perform the essential functions of the job, with or without an accommodation.
[4]The Seventh Circuit in Vande Zande v. State of Wisconsin Dep’t of Admin. previously held that “[an] employer that bends over backwards to accommodate a disabled worker…must not be punished for its generosity by being deemed to have conceded the reasonableness of so far-reaching an accommodation.”

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