Unreasonable Delays and IMEs: The Fifth Circuit Provides Guidance on Reasonable Accommodations Under the ADA

Quick Hits

• The Fifth Circuit ruled that a six-month delay in granting a reasonable accommodation could constitute a failure to accommodate under the ADA, emphasizing the need for a good-faith interactive process between employer and employee.
• The court found that a delay in accommodation and the requirement for an independent medical examination (IME) did not support a hostile work environment claim, as these actions were not severe or pervasive enough to alter employment conditions.
• The Fifth Circuit highlighted that reasonable accommodations under the ADA are not limited to enabling the performance of essential job functions, but also include things such as ameliorating pain.

Background of the Case

In Strife v. Aldine Independent School District, the employee worked for the local school district. She requested to bring her service dog to work to assist her with balance and gait issues, as well as post-traumatic stress disorder (PTSD), resulting from injuries incurred during her military service. The employer requested and received information from the employee’s treating physician. Approximately five months after the request, the employer then requested the employee to undergo an IME, which it explained was part of the interactive process and was needed to determine additional accommodations.

Frustrated with the employer’s response, the employee filed a charge of discrimination with both the U.S. Equal Employment Opportunity Commission (EEOC) and the state fair employment practices agency, and then a lawsuit alleging violations of the ADA and state disability law. She also provided an additional medical evaluation by Veterans Administration doctors that confirmed her disability. The employer, however, asserted that the evaluation was insufficient because it did not address alternative accommodations. The employee’s attorney then confirmed that no alternatives were available, and the employee’s request to have her service dog was finally granted.

The Texas federal district court subsequently dismissed some of the employee’s claims and granted summary judgment for the employer on the rest. The employee appealed these rulings to the U.S. Court of Appeals for the Fifth Circuit.

Delay in Accommodation

The Fifth Circuit assessed the delay in accommodation with regard to three separate claims under the ADA: a failure to accommodate, a hostile work environment, and discrimination, with varying results.

Under the ADA, a failure to accommodate claim consists of three elements: (1) the plaintiff must be a qualified individual with a disability, (2) the disability and its limitations are known by the employer, and (3) the employer failed to make reasonable accommodations for such known limitations. In this case, the employee argued that the six-month delay in granting her accommodation constituted a failure to accommodate. The Fifth Circuit observed that “‘the responsibility for fashioning a reasonable accommodation is shared between the employee and employer,’” and that an employer violates the ADA if it is unwilling to engage in a good-faith interactive process leading to a failure to reasonably accommodate an employee. Consistent with other circuits, it noted that “delay in providing reasonable accommodation may show a lack of good faith in the interactive process” and may, in fact, amount to a failure to provide reasonable accommodation.

On the other hand, the Fifth Circuit found that a delay in accommodation does not support a hostile work environment claim. Under Fifth Circuit precedent, such claim requires, among other things, that the “‘harassment must be sufficiently pervasive or severe to alter the conditions of employment and create an abusive working environment.’” Here, the employee relied upon only two instances of “harassment”: the failure to immediately grant an accommodation and the insistence on an IME—neither of which, according to the Fifth Circuit, was so severe or pervasive as to rise to the level of a hostile work environment.

As to the discrimination claim, the ADA requires a plaintiff to show that she (1) has a disability, (2) was qualified for the job, and (3) was subject to an adverse employment decision because of her disability. As the Fifth Circuit noted, an “adverse employment decision” can involve both major and minor facets of the terms, conditions, and privileges of employment. With regard to the delay in accommodation, however, the Fifth Circuit found that no such alteration occurred during the six-month interactive process, in that the employee maintained her same role and compensation, received high performance evaluations, and was never reprimanded. Nor did she suffer any kind of physical injury during that period.

The IME Requirement

The Fifth Circuit made several findings of interest as to the impact of the employer’s demand for an IME. With regard to the failure to accommodate claim, the Fifth Circuit stated that, “An exam request is not inherently unreasonable; the EEOC’s enforcement guidance suggests that an independent physical may be necessary ‘if the individual provides insufficient information … to substantiate that s/he has an ADA disability and needs a reasonable accommodation.” In this case, however, the employee had repeatedly provided the employer with information that confirmed her disabilities and need for accommodation, which could support a finding that the employer’s insistence on the IME was unreasonable.

The Fifth Circuit also assessed the impact of the IME with regard to a discrimination claim, noting that the IME never actually took place—but even if it had, there was nothing to suggest that it would have affected the employee’s terms, conditions, or privileges of employment.

Not Just for Essential Job Functions

Notably, the Fifth Circuit asserted that “‘reasonable accommodations are not restricted to modifications that enable performance of essential job functions.’” In so holding, the Fifth Circuit quoted a United States Court of Appeals for the D.C. Circuit case that it could be concluded that “forcing [a plaintiff] to work with pain when that pain could be alleviated by his requested accommodation violates the ADA.”

Thoughts for Employers

This case highlights several points for employers to consider. First, it is helpful to respond promptly to an employee’s request for accommodation, and to keep the interactive process moving at a reasonable pace. While a delay in the process is not necessarily a violation of the ADA, it may lead to that result depending on the circumstances. Second, a request for an IME may be warranted in particular cases where there is insufficient information to assess a request for accommodation. And last, reasonable accommodations are required not only to enable employees to perform their essential job functions, but also things such as ameliorating pain or enjoying the privileges and benefits of employment.

Ogletree Deakins will continue to monitor developments and will post updates on the Employment Law and State Developments blogs as additional information becomes available.

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