“Waive” Goodbye to Employer Liability Under the ADA for Voluntary Accommodations of Essential Job Functions

by Spilman Thomas & Battle, PLLC
Contact

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.

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

© Spilman Thomas & Battle, PLLC | Attorney Advertising

Written by:

Spilman Thomas & Battle, PLLC
Contact
more
less

Spilman Thomas & Battle, PLLC on:

Readers' Choice 2017
Reporters on Deadline

"My best business intelligence, in one easy email…"

Your first step to building a free, personalized, morning email brief covering pertinent authors and topics on JD Supra:
Sign up using*

Already signed up? Log in here

*By using the service, you signify your acceptance of JD Supra's Privacy Policy.
Privacy Policy (Updated: October 8, 2015):
hide

JD Supra provides users with access to its legal industry publishing services (the "Service") through its website (the "Website") as well as through other sources. Our policies with regard to data collection and use of personal information of users of the Service, regardless of the manner in which users access the Service, and visitors to the Website are set forth in this statement ("Policy"). By using the Service, you signify your acceptance of this Policy.

Information Collection and Use by JD Supra

JD Supra collects users' names, companies, titles, e-mail address and industry. JD Supra also tracks the pages that users visit, logs IP addresses and aggregates non-personally identifiable user data and browser type. This data is gathered using cookies and other technologies.

The information and data collected is used to authenticate users and to send notifications relating to the Service, including email alerts to which users have subscribed; to manage the Service and Website, to improve the Service and to customize the user's experience. This information is also provided to the authors of the content to give them insight into their readership and help them to improve their content, so that it is most useful for our users.

JD Supra does not sell, rent or otherwise provide your details to third parties, other than to the authors of the content on JD Supra.

If you prefer not to enable cookies, you may change your browser settings to disable cookies; however, please note that rejecting cookies while visiting the Website may result in certain parts of the Website not operating correctly or as efficiently as if cookies were allowed.

Email Choice/Opt-out

Users who opt in to receive emails may choose to no longer receive e-mail updates and newsletters by selecting the "opt-out of future email" option in the email they receive from JD Supra or in their JD Supra account management screen.

Security

JD Supra takes reasonable precautions to insure that user information is kept private. We restrict access to user information to those individuals who reasonably need access to perform their job functions, such as our third party email service, customer service personnel and technical staff. However, please note that no method of transmitting or storing data is completely secure and we cannot guarantee the security of user information. Unauthorized entry or use, hardware or software failure, and other factors may compromise the security of user information at any time.

If you have reason to believe that your interaction with us is no longer secure, you must immediately notify us of the problem by contacting us at info@jdsupra.com. In the unlikely event that we believe that the security of your user information in our possession or control may have been compromised, we may seek to notify you of that development and, if so, will endeavor to do so as promptly as practicable under the circumstances.

Sharing and Disclosure of Information JD Supra Collects

Except as otherwise described in this privacy statement, JD Supra will not disclose personal information to any third party unless we believe that disclosure is necessary to: (1) comply with applicable laws; (2) respond to governmental inquiries or requests; (3) comply with valid legal process; (4) protect the rights, privacy, safety or property of JD Supra, users of the Service, Website visitors or the public; (5) permit us to pursue available remedies or limit the damages that we may sustain; and (6) enforce our Terms & Conditions of Use.

In the event there is a change in the corporate structure of JD Supra such as, but not limited to, merger, consolidation, sale, liquidation or transfer of substantial assets, JD Supra may, in its sole discretion, transfer, sell or assign information collected on and through the Service to one or more affiliated or unaffiliated third parties.

Links to Other Websites

This Website and the Service may contain links to other websites. The operator of such other websites may collect information about you, including through cookies or other technologies. If you are using the Service through the Website and link to another site, you will leave the Website and this Policy will not apply to your use of and activity on those other sites. We encourage you to read the legal notices posted on those sites, including their privacy policies. We shall have no responsibility or liability for your visitation to, and the data collection and use practices of, such other sites. This Policy applies solely to the information collected in connection with your use of this Website and does not apply to any practices conducted offline or in connection with any other websites.

Changes in Our Privacy Policy

We reserve the right to change this Policy at any time. Please refer to the date at the top of this page to determine when this Policy was last revised. Any changes to our privacy policy will become effective upon posting of the revised policy on the Website. By continuing to use the Service or Website following such changes, you will be deemed to have agreed to such changes. If you do not agree with the terms of this Policy, as it may be amended from time to time, in whole or part, please do not continue using the Service or the Website.

Contacting JD Supra

If you have any questions about this privacy statement, the practices of this site, your dealings with this Web site, or if you would like to change any of the information you have provided to us, please contact us at: info@jdsupra.com.

- hide
*With LinkedIn, you don't need to create a separate login to manage your free JD Supra account, and we can make suggestions based on your needs and interests. We will not post anything on LinkedIn in your name. Or, sign up using your email address.
Feedback? Tell us what you think of the new jdsupra.com!