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ADA Accommodation and the Office Thermostat

Question:  Can you provide a summary of the Americans with Disabilities Act's requirements for reasonable accommodations? Specifically, does the ADA consider sensitivity to temperature to be a serious medical condition that requires an accommodation? We have an employee who repeatedly complains about the office temperature -- saying it is either too hot or too cold and claims that the temperature needs to be adjusted to accommodate her medical condition. She claims we have to accommodate her under the ADA but this seems excessive to us.

Monday, August 12, 2013
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Answer:  There is no indication that the Americans with Disabilities Act specifically recognizes temperature sensitivity (in and of itself) as a disability or serious medical condition. To date, there is no case law in which an employee has shown that sensitivity to temperature, not in conjunction with another disease, impairs a major life activity.

However, if an employee has a serious medical condition which is affected by temperature, such as fibromyalgia, asthma, anemia, low blood pressure, multiple sclerosis or some forms of cancer, then the employer has a duty to make a reasonable accommodation, as defined under 42 U.S.C. § 12111. See also Questions and Answers About Cancer in the Workplace and the Americans with Disabilities Act, EEOC (Jan. 19, 2011).

Employers are not required to provide employees with accommodations if they are not reasonable. Further accommodations are not required where the employee merely has a personal preference. The employee has the burden of providing the employer with some indication of a disability and how the disability relates to the requested accommodation.

The ADA is a federal law that prohibits discrimination against individuals with disabilities. Title I of the ADA covers employment by private employers with 15 or more employees as well as state and local government employers. Employers should keep in mind that the ADA is a floor, not a ceiling, and that some state laws provide more restrictive protections than the ADA. See, e.g., Cal. Gov't Code § 12926(k)(1)(B) (2013) (California's Fair Employment and Housing Act only requires an individual to be "limited," rather than substantially limited, in a major life activity); N.Y. Exec. Law § 292(21) (McKinney 2012) (New York State Human Rights Law defines a disability as a "physical, mental, or medical impairment" which prevents the "exercise of a normal bodily function").

The ADA defines "disability" as: (a) a physical or mental impairment that substantially limits one or more of the major life activities of such individual; (b) a record of such impairment; or (c) being regarded as having such an impairment. 42 U.S.C. § 12102(1) (2006). The U.S. Supreme Court articulated a three-step process for determining whether an individual has a disability under this subsection of the ADA. First, an employee must show that he suffers from a physical or mental impairment. Second, he must identify the activity claimed to be impaired and establish that it constitutes a major life activity. Third, the employee must show that the impairment substantially limits the major life activity previously identified. Bragdon v. Abbott, 524 U.S. 624, 631 (1998).

Congress enacted the 2008 Amendments to the ADA, effective Jan. 1, 2009, in order to establish clearer guidelines for an individual seeking ADA protection to establish that he has a disability within the meaning of the statute. See 29 C.F.R. § 1630.1; Alexiadis v. N.Y. Coll. of Health Prof'ls, 891 F. Supp. 2d 418, 428 (E.D.N.Y. 2012). While the amendments left the definition of "disability" unchanged, they made significant changes regarding the way that certain terms should be interpreted. Most importantly, Congress expressly directed the Equal Employment Opportunity Commission to revise its regulations regarding the definition of "substantially limits" so that the standard would be easier to meet.

The EEOC, in their final regulations, did not specifically define "substantially limits," but instead provided guidance, referred to as the "rules of construction."  The rules of construction include some of the following guidance: (1) the term "substantially limits" shall be construed broadly in favor of expansive coverage; (2) an impairment is considered a disability if it substantially limits the ability of an individual to perform a major life activity as compared to most people in the general population; (3) an impairment that occurs in episodes or that is in remission is considered a disability if it would substantially limit a major life activity when active; (4) only one major life activity needs to be substantially limited to be considered a disability under the ADA; and (5) the effects of an impairment lasting, or expected to last, fewer than six months can be substantially limiting within the meaning of this statute. 29 C.F.R. § 1630.2(j).

Congress has also expanded the definition of "major life activities" through two non-exhaustive lists. 29 C.F.R. § 1630.2(i). The first list includes activities such as caring for oneself, performing manual tasks, seeing, hearing, eating, walking, and standing. Id. The second list includes major bodily functions such as neurological, respiratory, circulatory, cardiovascular, and musculoskeletal functions. Id.

Finally, the term "regarded as" was changed so that it no longer required a showing that the employer perceived the individual to be substantially limited in a major life activity. 29 C.F.R. § 1630.2(l). This change ensures that the focus for establishing ADA coverage is based on how a person is being treated because of a physical or mental impairment, rather than on what an employer may have believed about the nature of the person's impairment. Id.

Reasonable Accommodations

The ADA imposes liability for an employer's failure to accommodate an employee's "known physical or mental limitations."  42 U.S.C. § 12112(b)(5)(A). Ordinarily, the employer's duty to accommodate is triggered by a request from the employee. See, e.g., Salgado-Candelario, 614 F. Supp. 2d 151, 169 (D.P.R. 2008) (quoting Reed v. LePage Bakeries, Inc., 244 F.3d 254, 261 (1st Cir. 2001)). That is because an employee's disability and concomitant need for accommodation are often not known to the employer. Id. Hence, the employee has the burden of showing that he or she sufficiently requested the accommodation in question. Id. The employee's request must be "sufficiently direct and specific," giving notice that she needs a "special accommodation."  Id. (quoting Nathanson v. Medical Coll. of Pa., 926 F.2d 1368, 1381 (3d Cir. 1991)). At the very least, the request must explain how the accommodation requested is linked to some disability. "The employer has no duty to divine the need for a special accommodation where the employee merely makes a mundane request for a change at the workplace."  Id. (quoting Reed, 244 F.3d at 261). In addition to making the required request for accommodation, the employee must also establish that the requested accommodation is reasonable, would enable her to perform the essential functions of her job, and that the request is feasible for the employer under the circumstances.

A reasonable accommodation may include making existing facilities used by employees readily accessible to and usable by individuals with disabilities. 42 U.S.C. § 12111(9). An employer who fails to make "reasonable accommodations to the known physical or mental limitations of an [employee] with a disability" discriminates unless the employer "can demonstrate that the accommodation would impose an undue hardship on the operation of [its] business."  42 U.S.C. § 12112(b)(5)(A); U.S. Airways, Inc. v. Barnett, 535 U.S. 391, 395 (2002).

Importantly, personal preference is not considered a "reasonable accommodation" under the ADA. Williams v. Brunswick Cnty. Bd. of Educ., 725 F. Supp. 2d 538, 549 (E.D.N.C. 2010), aff'd, 440 F. App'x 169 (4th Cir. 2011); Bresloff-Hernandez v. Horn, No. 05 Civ. 0384, 2007 WL 2789500, at *10 (S.D.N.Y. Sept. 25, 2007); Raffaele v. City. of N.Y., No. 00-CV-3837, 2004 WL 1969869, at *16 (E.D.N.Y. Sept. 7, 2004). "The obligation to make a reasonable accommodation . . . does not extend to the provision of adjustments or modifications that are primarily for the personal benefit of the individual with a disability."  Id. Accommodations need only be "sufficient to meet the job-related needs of the individual being accommodated."  Id. The employee must provide the employer with some indication of a disability and how the disability relates to their requested accommodation. Bresloff-Hernandez, 2007 WL 2789500, at *10.

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No Accommodation Required if It Results in an Undue Hardship

In some instances, courts have found that an employee's request for a reasonable accommodation constitutes an undue hardship such that the employee is not entitled to the accommodation sought. See, e.g., E.E.O.C. v. Eckerd Corp., No. 1:10-cv-2816-JEC, 2012 WL 2726766, at *9 (N.D. Ga. July 9, 2012) (employee with osteoarthritis in both knees requested a reasonable accommodation from her employer to allow her to sit down for 30 minutes of every hour she worked and the court held that "[a]ccommodations that result in other employees having to work harder or longer are often denied on the ground of undue hardship"); Pate v. Baker Tanks Gulf S., Inc., 34 F. Supp. 2d 411 (W.D. La. 1999) (holding that it constituted an undue hardship for the employer who had to hire several temporary employees to fill a diabetic employee's position after the employee was unable to work for almost two months).

Reasonable Accommodations for Temperature Sensitivity

Turning back to your specific question – whether you will be required to provide a reasonable accommodation to the employee depends on the cause of the employee's sensitivity to temperature.

While the courts have not explicitly held that temperature sensitivity is considered a serious medical condition, some medical conditions that are affected by temperature may require an employer to accommodate the employee. See, e.g., Martinez v. Conn. State Library, 817 F. Supp. 2d 28, 52-55 (D. Conn. 2011) (an employer allowed an employee whose asthma, which was exacerbated by cold temperatures, to use a personal space heater and the court found that while the employee's asthma was not sufficient to qualify as a serious medical condition, the employer's allowance of the space heater was enough to constitute a reasonable accommodation). In one case, an employee claimed that cold temperatures aggravated her dysplasia for which she presented a doctor's note and requested that she be moved to another cubicle in a warmer part of the office. Salgado-Candelario v. Ericsson Caribbean, Inc., 614 F. Supp. 2d 151, 171 (D.P.R. 2008). The court found that there was a triable issue of fact as to whether the employer engaged in the necessary interactive process with the employee to accommodate her condition.

 While sensitivity to temperature (in and of itself) may not necessarily need to be accommodated by an employer, the employer should be cognizant as to whether the sensitivity is affected by another condition that may require accommodation. The only way to gain this crucial information is to engage in a meaningful back and forth discussion with the employee concerning the reasons for the accommodation request. However, if it is established that the sensitivity to temperature is merely a personal preference for a certain temperature, then the employer is under no obligation to make an accommodation. However, if it is the result of a serious medical condition, accommodations may be required as long as it is reasonable and will not result in an undue hardship to the employer.

 Keisha-Ann G. Gray is senior counsel in the labor and employment law department of Proskauer in New York and co-chair of the department's employment litigation and arbitration practice group. Proskauer Associate Allana Grinsteyn assisted with this article.

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