ADA Accommodations Are Not Set in Stone

Quick Hits

• The U.S. Court of Appeals for the Seventh Circuit has ruled that reasonable accommodations under the ADA and the Rehabilitation Act may be subject to modification where circumstances change.
• An employer does not need to provide the employee’s choice of accommodation, as long as it offers one that effectively enables the employee to perform the essential job functions.
• It is important for both employers and employees to engage in an interactive process to determine reasonable accommodations.

Background

In Bourke v. Collins, a U.S. Department of Veterans Affairs (VA) hospital employee with mobility issues used a scooter at work and originally had a reserved parking spot near a locked storage room for his scooter. When COVID-19–related restrictions caused the VA hospital to change which entrances employees could use, he asked for a new reserved spot near the emergency room entrance. The hospital denied this, citing a lack of secure storage nearby, the need to keep handicapped spaces available for patients, and the inability to guarantee the spot would always be open.

Instead, the hospital offered a reserved space near another approved entrance with shared scooter storage. The employee refused, wanting a locked room. For several weeks, he parked in the new spot and walked farther to store his scooter, until his original entrance reopened. He then sued under the Rehabilitation Act (the federal-employee analog to the ADA), claiming that the hospital had denied him a reasonable accommodation. He sought a recovery of damages for the pain and suffering attributable to the extra walking he had undertaken.

The Seventh Circuit’s Decision

Under the ADA (as well as the Rehabilitation Act, which applies the ADA’s standards), employers are required to provide reasonable accommodations to qualified employees with disabilities, unless doing so would impose an undue hardship on the operation of the business. A reasonable accommodation is any change or adjustment to a job or work environment that enables an employee with a disability to perform the essential functions of his or her position or to enjoy equal benefits and privileges of employment.

The Seventh Circuit’s opinion, affirming the district court’s grant of summary judgment in favor of the hospital, highlighted several key points regarding the reasonable accommodation obligation under the ADA (and Rehabilitation Act):

• Accommodations are dynamic. The obligation to accommodate is not fixed in time. Although, as the court noted, “an employer may not rescind an accommodation simply because it is inconvenient or burdensome,” an employer may revisit, and, if necessary, modify accommodations as circumstances change.
• Effectiveness is the standard. The court clarified that the ADA does not require employers to grant employees’ preferred accommodations. Instead, the employer’s obligation is to provide a reasonable accommodation that enables the employee to perform the essential functions of his or her job. The accommodation must be effective, but it does not have to be the exact solution the employee desires.
• Communication is essential. The court emphasized that both employers and employees should engage in ongoing dialogue to ensure that accommodations remain appropriate and effective as needs and circumstances evolve. In this case, the court questioned whether the hospital had caused the interactive process to break down when it unilaterally withdrew the original accommodation without conferring with the employee. Nonetheless, even if this were the case, this failure alone is not a violation of the law; rather, “[c]ourts focus on the resulting accommodation, not the process.” The fact that the hospital offered an effective alternative was sufficient to avoid possible liability, but this reminds employers that the optimal path is to fully engage in and document the interactive discussion.

Implications for Employers

This case serves as a reminder that ADA accommodations are both flexible and focused on effectiveness. As circumstances change, so too may the nature of the accommodation required. If this is the case, engaging with the employee in an interactive process to discuss possible changes and alternate accommodations is an important step to consider. Finally, the employer is not required to provide the specific accommodation requested by the employee, but it must ensure that whatever accommodation is provided enables the employee to perform the essential job functions.

Ogletree Deakins’ Leaves of Absence/Reasonable Accommodation Practice Group will continue to monitor developments and will provide updates on the Leaves of Absence blog as additional information becomes available.

Follow and Subscribe
LinkedIn | Instagram | Webinars | Podcasts