Ask the Accommodation Experts: Overly Generous Accommodations

DMEC Staff@Work

The Downside of Overly Generous Accommodations

Overly Generous AccommodationsBy Jenny Haykin, MA, CRC

Integrated Leaves & Accommodations
Puget Sound Energy

By Tom Sproger, MS, CEAS-II

Ergonomics Consultant
Solutions Northwest Inc.

A human resources manager from a sales organization asked this accommodation question.

“Our organization is very supportive of employees. Our policy allows line managers a fair amount of latitude in accommodating employees under the Americans with Disabilities Act Amendments Act (ADAAA). In some cases, we believe managers have probably exceeded legal requirements. So far, we’re not aware that this has harmed the organization, but we’re beginning to wonder if it could. What are the negative consequences of being too generous in an accommodation or allowing too much time for an accommodation?”

Accommodation experts Jenny Haykin and Tom Sproger explain how to assess when an accommodation request is unreasonable,  and therefore, can be rejected or modified.

An accommodation is too generous when it results in work not getting done over an extended period of time, provides special treatment for one employee that would not be replicated for others with the same need, or is not legitimately needed.

Removing essential job functions is not required under the ADAAA, provided that the functions are indeed necessary to perform the job. It may be beneficial to excuse an employee from a job requirement while they are recovering, but there is no legal obligation to do so and it is not advisable to do so for an extended period of time. An employee who must perform field work to get their job done but is given only the desk work portion of the job for example, will not be fulfilling the requirements of the position.

An accommodation compromises the business if it renders the company unable to meet its obligations to safety, collective bargaining agreements, or to other parties such as customers, the general public, creditors, and other employees. The ADAAA does not require an employer to provide an accommodation that creates an “undue hardship” or a “direct threat.”

An example may be an employee who needs to take breaks at a frequency that results in missed customer contacts and an increased workload on colleagues. Imagine that this employee is a 911 dispatcher. This situation is a hardship to the organization that must cover all incoming calls immediately, and it puts callers at risk during crisis events, potentially creating a direct threat.

Granting an accommodation for a duration that is not feasible for the business to support and would not be offered to another employee in the same circumstances creates not only business risk but legal risk. If another employee comes forward requesting the same accommodation and is denied, the employer may have to create a legal defense justifying why it was allowable for one employee and not another.

An example is providing an extended leave of an unsustainable duration. Of particular concern is granting accommodations to the so-called “FBI” employees (friends, brothers, and in-laws of management) without medical justification as this can result in disparate treatment. For example, a company granting an extended leave to a tax accountant during tax season should be prepared to grant a comparable leave requested as a disability accommodation to avoid favoring the employee who had no legal right to the leave over the employee who is in a protected class.

In general, following the ADAAA and providing job modifications when they are needed, are reasonable, and do not create undue hardships on the business or direct threats will help employers avoid providing overly generous accommodations.