“Are we required to accommodate this request?” It’s probably the question I’m asked the most, in one variation or another. Whether an accommodation is or is not required depends on the specific facts, including, but not limited to: the nature of the request, the job, the size of the employer, and the employer’s past practices. In this week’s WWYLD, we focus on how precedent impacts the answer to the “are we required to accommodate” question.
Question: An employee brought a note that he can return from leave to light duty. Are we required to accommodate? We allow only 2 light duty workers at one time and we don’t normally accommodate light duty work for an injury/illness that is not job-related.
You’re not automatically required to accommodate light duty. Anytime an employee requests a modification to a position on the basis of a disability, you’re required to: a) engage in an interactive process with the employee; and b) review each requested accommodation on a case-by-cases basis to determine whether it can be provided without posing an undue hardship on the company.
The Americans with Disabilities Act (“ADA”) requires that each request for an accommodation be evaluated based on the specific facts surrounding the request. Because this case-by-case consideration is required, it is generally impermissible to adopt bright-line rules related to the number of accommodations allowed. Employers should generally avoid policies that state that disability-related leaves will be automatically denied after X duration (though some recent case law is showing a tide change here) or that light duty will be automatically denied after X number of employees have asked.
That is not to say that an employer must approve each light duty request, but that each request must be considered on its own merit. Maybe light duty poses a hardship in one department but not another. Or, maybe it’s easier to accommodate light duty in one job than in another job. The result might still be that that company can only accommodate two requests for light duty at one time because the third would pose an undue hardship. But, we’re arriving at the answer using a different, and legally-compliant, methodology.
Let’s turn to the differentiation between workers’ compensation and non-workers’ compensation-related requests. Because of associated cost benefits, employers are often inclined to treat workers’ compensation accommodations differently than non-workers’ compensation accommodations. Employers will often allow an employee on leave for a work-related injury to take many months off. But, would seek to terminate an employee on non-workers’ compensation leave shortly after the legally protected period. Similarly, employers will often go out of their way to return a workers’ compensation employee to work – accommodating restrictions without question. But, the employer would not desire to accommodate the non-workers’ compensation employee in the same way. It seems logical, because one has associated costs the other does not. But, it poses a great deal of legal risk. To not run afoul of discrimination laws, employers must treat employees on leave the same, regardless of whether the leave is or is not related to a workplace injury or illness. And, employers must treat employees requesting accommodations the same, regardless of whether the restrictions are related to a workplace injury or illness. If an employer were to allow an employee injured on the job to remain on leave for 2 years, the employer has opened the door for another employee to be entitled to a 2-year leave. If the employer allows light duty for a workers’ compensation employee, the employer would then have to allow light duty for a non-workers’ compensation employee or risk a claim of disability discrimination and retaliation.
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