Going “Above & Beyond”: Exceeding ADA Requirements Without Getting Burned

By Francis Alvarez, JD

Principal, National Coordinator of Disability, Leave & Health Management Practice
Jackson Lewis PC

Despite Americans with Disabilities Act (ADA) litigation horror stories, some employers surpass ADA requirements and provide extra support to employees without suffering legal penalties. To achieve this, however, requires advanced accommodation program design and protocols. Some professionals ask, “but why would I want to surpass ADA requirements?” It may be best to answer this question with other questions, such as:

• Why would you want skilled, experienced employees to leave your organization?
• Why would you want to increase ADA litigation risks for your organization?

We need to stop thinking of the ADA as a problem to be mitigated and start seeing it as an opportunity. Many employers have made that shift in regard to workers’ compensation (WC) claims. WC costs can be so significant that some organizations adopt an “above and beyond” attitude toward helping WC claimants stay at work (SAW) or return to work (RTW).

Many of our clients have begun to apply this approach toward ADA cases also. This is a natural extension, since many WC claimants also qualify for ADA protections. Providing intensive intervention and supports for WC claimants has been shown to reduce absence duration, and has become a recognized best practice.

Applying this same “above and beyond” approach can help reduce absence duration for ADA cases as well. Effective ADA accommodation programs also have been shown to increase employee retention.¹ They may also reduce ADA litigation risks by solving difficult cases, increasing employee satisfaction and loyalty, and demonstrating the company’s good-faith efforts to comply with law. An effective ADA program that applies an “above and beyond” approach to help employees succeed has substantial payoffs for both employer and employee.

And contrary to popular belief, case law shows that employers can select some cases for accommodations that exceed ADA requirements without locking in an unsustainable precedent. Appeals courts in several circuits have not penalized employers that operated in the spirit of the ADA to help employees succeed on the job. These cases reduce the twin fears of establishing a precedent that sets the bar too high, or of being penalized for being “inconsistent.”

Employers can escape the “no good deed goes unpunished” scenario by meeting three important “above and beyond” requirements:

• Acquire a better understanding of the law.
• Acquire a better understanding of the jobs in your organization.
• Develop a better system of reasonable accommodation.

What Is a “Reasonable Accommodation”?

Despite what you may have heard, the ADA and its associated case law have established that none of the following items are required elements in your next reasonable accommodation:

• Removing essential job functions
• Diluting uniformly enforced productivity standards
• Excusing or forgiving past misconduct or poor performance
• Promoting employees
• Bumping another employee from an existing position
• Creating a position
• Changing a supervisor (as compared to changing supervisory techniques)
• Providing items of a personal nature (e.g., hearing aids, eyeglasses, wheelchairs, or prosthetic devices that are used both on and off the job)

This list of rejected requirements helps restore the “reasonable” aspect of accommodations! But do not be surprised if employees or their medical providers request these accommodations. By acquiring a better understanding of the law, your managers and your organization have much more flexibility to reject inappropriate requests that are outside the law.

Understand Your Jobs

Good line managers know the job functions of their staff in great detail. Many organizations assume that is all they need to defend in court if litigation occurs. But do line managers want to be in the position of “your word versus the employee” in court? In an unpredictable jury trial, this could be a high-risk position. It is a far stronger position if an organization has job documentation including:

• The position’s essential job functions
• A documented job analysis to validate the manager’s judgment concerning the position’s essential job functions
• The position’s qualification and productivity standards
• A written job description documenting all of this

 “Above and Beyond” ADA Cases

Granting more leave than necessary. Over three years, Ford Motor Company automobile assembler Thomas Amadio was granted 23 leaves requiring more than 70 weeks off work for multiple issues. Amadio allegedly failed to comply with Ford’s short-term disability program; he was terminated, and sued Ford for discrimination.

The district court dismissed the case, and the U.S. Appeals Court for the Seventh Circuit upheld the dismissal. In Amadio v. Ford Motor Co., the court stated that if an employer “bends over backwards to accommodate a disabled worker … it must not be punished for its generosity by being deemed to have conceded the reasonableness of so far-reaching an accommodation.”

Creating positions. William Lucas suffered a work-related injury and employer W.W. Grainger accommodated him by temporarily displacing two office workers to allow him to perform their duties. Lucas then requested reassignment to another position despite the absence of any vacancies. Because his request was denied, Lucas sued for retaliation under the ADA.

The district court granted summary judgment in favor of the employer. When affirming the lower court ruling, the U.S. Appeals Court for the Eleventh Circuit stated, “Good deeds ought not to be punished, and an employer who goes beyond the demands of the law to help a disabled employee incurs no obligation to continue to do so.”

Eliminating essential job functions. Lucas v. W.W. Grainger, Inc. cited above also established that eliminating essential job functions is not required. The Eleventh Circuit court stated, “Employers are not required to transform the position into another one by eliminating functions that are essential to the nature of the job as it exists.”

Other key precedents for employers. Clear legal precedents establish several other important limits on the ADA. Employers are not required to provide accommodations that would:

• Continue eliminating essential job functions, see Holbrook v. City of Alpharetta (Eleventh Circuit)
• Excuse a rotating shift requirement, see Laurin v. The Providence Hospital (First Circuit)
• Permit a part-time work schedule, see Terrell v. US Air (Eleventh Circuit)
• Allow work from home, see Smith v. Ameritech (Sixth Circuit)
• Provide multiple leaves for substance abuse treatment, see Evans v. Federal Express (Eleventh Circuit)

“Above and Beyond” Protocols

At the heart of many lawsuits are unreasonable employee expectations about what constitutes a “reasonable” accommodation. When going above and beyond ADA requirements to accommodate an employee, the employer must communicate clearly to avoid inflated expectations. Here are some suggested protocols to avoid this problem.

• Set the stage by clarifying essential job functions in the job description.
• Approve an “A” and “B” accommodation for an initial limited time period.
• Maintain control by informing the employee that the company may discontinue either accommodation at any time, on the company’s sole discretion. Document this position in writing.
• Consider asking employees to sign an agreement for each accommodation.
• Always be prepared to show that the employer did, in fact, go above and beyond legal requirements.
• Be prepared to provide a legitimate, non-discriminatory reason for why the company approved accommodations for some employees, but denied them to others. Explain why the company believed that an “above and beyond” accommodation would help that employee succeed or why that employee was strategically important to the company, compared to other employees with lower prospects for success or less importance to the company.
• Be consistent with time limitations, or the rationale for the limitations, when providing temporary accommodations.

Conclusion

Employers can enjoy the benefits of going above and beyond ADA requirements without suffering legal penalties. To achieve this, their accommodation programs must have clarity about essential job functions, and use protocols that prevent inflated employee expectations. “Above and beyond” accommodations help retain high performing employees and communicate to their co-workers that the organization values the workforce. By clarifying the company position and managing employee expectations during the accommodation process, employers can reduce their litigation risk. And if litigation does occur, they can increase the favorable outcomes.

References

1. KK Charles. (2004). The Extent and Effect of Employer Compliance with the Accommodations Mandates of the Americans with Disabilities Act. Journal of Disability Policy Studies, 15(2), 86-96.