It’s a Hard Knock Life for ADA Claimant at the First Circuit

A manager for a Burger King franchise in Puerto Rico who requested a fixed work schedule due to posttraumatic stress disorder (PTSD) that he developed after being attacked at gunpoint was not a “qualified individual” under the Americans with Disabilities Act (ADA), the First Circuit Court of Appeals recently held. Characterizing its opinion in Sepulveda-Vargas v. Caribbean Restaurants, LLC, as a “lesson straight out of the school of hard knocks,” the Court found that being able to work rotating shifts was an essential function of the manager’s job and his inability to do so barred his failure to accommodate claim.

The manager was attacked in 2011 while attempting to make a bank deposit on behalf of his employer, Caribbean. He suffered from PTSD and depression after the attack and, in response to these diagnoses, requested to work a fixed schedule. Although Caribbean initially granted the request, it later told the manager that he would have to go back to rotating shifts. The manager resigned in 2013 and then sued Caribbean, claiming that they failed to accommodate his disability by not permanently providing him with a fixed schedule. The court granted summary judgment in favor of Caribbean and the manager appealed.

The issue on appeal was whether, in light of the manager’s request to work a fixed schedule, he was still qualified to perform the essential job functions that Caribbean required of its managers. The First Circuit acknowledged that identifying essential job functions is a fact-specific exercise, but found there was no dispute in this case that the ability to work rotating shifts was an essential function of the manager’s job. Caribbean explained, and the manager conceded, that rotating shifts were necessary for the equal distribution of work among managers, and the manager further admitted during his deposition that rotating shifts was a responsibility he shared in common with other managers during his employment with Caribbean. The Court also pointed to Caribbean’s hiring materials, including the manager’s signed job application, which made clear that managerial employees had to be able to work different shifts.

Although the manager pointed out that Caribbean had initially granted his request for a fixed schedule, the Court found that Caribbean’s willingness to do so on a temporary basis was not a concession that rotating shifts was a non-essential function. Consistent with decisions from other federal courts, the Court found that to conclude otherwise would unfairly punish employers for doing more than the ADA requires.

Once an Accommodation, Always an Accommodation?

A parts clerk suffers a stroke. Following the stroke, the clerk returns to work without restrictions but still has difficulty moving his left side. The clerk, however, continues to receive rehab and all parties expect that his condition will improve. Based on that expectation, the clerk’s supervisors tell him that they will accommodate him as best they can as long as he can reasonably perform most of his job, which happens to include being able to lift 50 pounds. Over the next 15 months, the clerk has difficulty completing all of his tasks in a safe and timely manner, but his employer elects not to reprimand him in light of his full release and the expectation that he will continue to improve. The employee does not improve, though, and so the employer offers the clerk a job transfer. The employee accepts but fails to adjust to the new position, and the employer terminates his employment. The clerk then sues claiming that, because the employer accommodated him for 15 months without complaint, it was obligated to continue doing so.

The question is: Is he correct?

A federal district court in North Carolina recently tackled this question and—based on the specific facts of the case—answered it with a “no.”

In Moore v. Wal-Mart Stores East, LP, the court noted that, even after 15 months, the clerk was unable to perform the essential functions of his job with or without a reasonable accommodation. He could not, for example, lift more than 20 pounds or safely climb ladders on his own and could only do so with assistance from others, which the court noted was unreasonable because it effectively reallocated the job’s essential functions to others.

As for the clerk’s claim that the employer was obligated to continue providing the accommodation it had given him for 15 months, the court found that the employer was not required to maintain a diminished level of exertion indefinitely. Although the employer had accommodated the clerk by allowing him to resume working while only performing certain functions, there was no legal duty to create a “permanent light-duty position that does not otherwise exist.”

According to the court, it could not punish the employer by deeming it to have “conceded the reasonableness of so far-reaching an accommodation.” Otherwise, it would discourage employers “from doing precisely what was done here, which was to temporarily lessen the physical requirements of a job in hopes that the employee’s functional capacity would be restored.” That result, said the court, would clearly be at odds with the purpose of the Americans with Disabilities Act (ADA).

When Is Telecommuting a Reasonable Accommodation Under the ADA?

Earlier this month, the Sixth Circuit Court of Appeals shared its perspective on this question and held that telecommuting was not a reasonable accommodation for an employee where her essential job duties required regular and frequent in-person contact with suppliers and customers.  In some respects, the court’s conclusion that telecommuting may not be appropriate for jobs requiring regular physical attendance is rather unremarkable.  As the use of telecommuting rises, however, the decision’s common-sense approach to the issue is likely to have a lasting impact.

The employee in the case was a resale buyer who had a severe case of irritable bowel syndrome, which lasted for several years and caused her to be increasingly absent as the years progressed.  Her employer, Ford Motor Company, worked with her during that time to accommodate her condition, including several attempts to accommodate a telecommuting schedule.  Over time, however, her job performance continued to deteriorate.  At one point, she requested to telecommute four days per week.  Ford declined the request but offered other accommodations, including relocating her desk closer to a bathroom.  The employee did not accept the alternative accommodations and Ford later terminated her.

The Equal Employment Opportunity Commission subsequently sued Ford, arguing that the employee’s request for a four-day telecommuting schedule was a reasonable accommodation and that Ford’s denial of the request violated the ADA.  The Sixth Circuit Court of Appeals disagreed. Relying on a “common-sense” approach, the court focused on the highly interactive nature of the employee’s position and found that regular, in-person attendance was an essential function of her job. Although the ADA requires employers to provide reasonable accommodations to qualified employees with disabilities, the court found that the employee in this case was not “qualified” where she could not consistently be on site to perform her job.  Providing a telecommuting accommodation would not have been reasonable because it would not have allowed her to perform the essential interactive duties of her job.

The Sixth Circuit’s decision does not go so far as to hold that telecommuting can never qualify as a reasonable accommodation.  For positions that do not require a high degree of interaction with customers or staff, or that can be performed effectively from a remote location through the use of technology, telecommuting very well may offer a viable accommodation.  Employers should therefore continue to engage with employees requesting telecommuting as an accommodation to determine whether, under the particular facts, the request can reasonably be accommodated.