Potential ADA accommodations abound, but here are a few declared ‘unreasonable’
There is no exhaustive list of potentially reasonable accommodations. Whether an accommodation is reasonable will depend on the unique circumstances of each instance, including the particular employee’s limitations and assigned essential functions. But are there accommodations that have been declared “unreasonable.”
It is not reasonable to eliminate “essential functions” of the position. An “essential function” is a “fundamental duty of the position.” It is a central component of the job in question. When determining whether a function is “essential,” courts will typically consider identification of particular duties or functions in job descriptions or advertisements, the amount of time spent performing the function, and the number of employees available to perform the function, among other factors.
The purpose of an accommodation under the Americans with Disabilities Act is to enable an employee to continue to perform essential functions of the position. The Equal Employment Opportunity Commission (EEOC) has thus long advised that an employer “does not have to eliminate an essential function, i.e., a fundamental duty of the position” as an accommodation. An employer can typically reject any request to do so on the grounds that it is not reasonable for purposes of the ADA.
It is not reasonable to place an employee in a position for which he is not qualified. Transfer to a different position may constitute a reasonable accommodation. However, the employee must have the education, experience and/or skills necessary to perform that new position, i.e., he must be qualified for that position. “There is no obligation for the employer to assist the individual to become qualified.” For instance, if the employee would have to obtain certifications or training in order to properly perform the job, the employer does not have to provide those or wait for the employee to obtain those, unless the employer does so for other non-disabled persons entering the particular job classification.
It is not reasonable to grant open-ended, or indefinite leave of absence, during which no work can be performed. An extended leave of absence may constitute a reasonable accommodation for purposes of the ADA. However, it is not reasonable when an employee requests an open-ended or indefinite leave of absence but is unable to perform any essential functions during that leave. As noted by U.S. Supreme Court Justice Neil Gorsuch, while serving on the U.S. Court of Appeals for the Tenth Circuit, “reasonable accommodations – typically things like adding ramps or allowing more flexible work hours – are all about enabling employees to work, not to not work.”
Takeaways for employers
It is important to keep these potential limitations in mind when administering the ADA with your employees. Although a particular accommodation may not be considered reasonable, employers remain free to extend it. Extending these types of accommodations to some, but not all, could expose an employer to liability.
As we continue to adapt and (hopefully!) emerge from the COVID-19 pandemic, employers must affirmatively reinstate any essential functions that were excused during the pandemic, such as physical attendance in the workplace. Make sure your employees are aware of their essential functions, particularly as they return to the workplace. Update job descriptions periodically to make sure that they accurately reflect job duties.