In Pursuit of a Normal Life
A recent court decision has broadened the obligations of employers, experts say, by requiring them to analyze whether a reasonable accommodation might be required even when a disabled employee can perform the "essential functions" of the position.
By Kecia Bal
Even when a disabled employee effectively can perform her duties, employers still may be required to provide for a requested job transfer, according to employment attorneys reviewing a recent case from the 10th circuit.
"Most employers are used to dealing with the question of finding and providing a reasonable accommodation in the context of an employee's ability to perform the essential functions of the job at issue," says Kristin Erenburg, an employment attorney at Cleveland-based Walter & Haverfield.
The case involved a United States Forest Service employee, Clarice Sanchez, who suffered a work-related injury that permanently affected her sight. After returning to work, she requested to move to another office where she said she would have better access to more qualified medical care.
Sanchez's suit initially was dismissed, but she then won her case on appeal in September, with the court ruling that her request was not unreasonable, even though she was able to perform the essential functions of her job without a move.
"This decision broadens the obligations of employers in now requiring them to analyze whether a reasonable accommodation might be required even where the essential functions can be performed," Erenburg says.
Katherine S. Catlos, who advises employers on preventing and defending claims by employees, says the decision may seem counterintuitive because a transfer to allow for medical treatment may not seem work-related.
"So I can see how HR directors will be surprised by the decision because now they have to consider the reasonableness of an employee's request for a transfer to allow that employee to see a doctor in a certain geographical location," says Catlos, the managing partner of the San Francisco office of Kaufman, Dolowich, Voluck & Gonzo.
This ruling is not out of line with others, though, she says.
"Many courts have ruled that transfers are not, per se, unreasonable," she says. "That is because the 'ideal' of the accommodation process is to 'mainstream' disabled employees back into the workforce. Allowing an employee to seek medical treatment that allows the employee to get healthy and back to work furthers that objective."
Employers may find themselves in a difficult situation when a worker's competency is at issue, Catlos says.
"We oftentimes see purportedly disabled employees raising the need for an accommodation in connection with a disciplinary proceeding as a 'get out of jail free' card," Catlos says. "For example: 'My supervisor is stressing me out. I need a transfer.' But that employee has been performing poorly and tries to shift the blame to the supervisor."
"The problem is that there is a split of authority as to whether an employee must prove at trial that they were a 'qualified' employee, that is competently performing in their job, in order to prove their 'failure to accommodate' claim," she says. "Presently, it appears that the courts are not requiring an employee to prove he was competently performing in connection with a failure to accommodate claim."
Although the decision appears to increase the potential obligations of employers, Erenburg says companies still maintain the right to investigate whether an employee is actually disabled and whether a reasonable accommodation might be required.
"[Employers] must now engage in a broader interactive process and be open to the idea of reasonable accommodations that may be necessary to allow access to medical treatment relating to quality of life, and not necessarily the essential functions of the job," she says, adding that employers also have the option of demonstrating that such a transfer would be an undue hardship on business operations.
John Hancock, who specializes in employment law in the Detroit office of Butzel Long, says the case needs to be taken in context as a 10th Circuit decision, and as a situation that involves a federal employee. As a federal employee, Sanchez sued under the Rehabilitation Act, which is similar to the Americans with Disabilities Act.
"[M]ost employers do not have the ability to transfer someone across the country to the same job as the government does," Hancock says. "It now adds the question of medical treatment to reasonable accommodation, which I am sure most people including HR professionals never thought of, but again very few would be in that position."
Hancock says company leaders still should be attentive to this type of decision.
"Be aware of this case and look closely at any request for an accommodation that asks for a different shift, different job or different department," he says.
Michael Newman, a litigation partner in the Los Angeles office of Barger & Wolen, says these accommodations rules also apply to job applicants.
"So, an HR executive cannot hope to avoid these issues simply by refusing to hire those with disabilities," he says.
And the decision may be an indication that a company's obligation to provide accommodations may be broader than what is commonly understood, Newman says.
"An HR leader needs to understand that the law has been interpreted to mean that they are obliged not merely to make accommodations that enable the employee to perform his or her work," Newman says, "but that enable him or her to 'pursue a normal life.' "