In "Other Duties as Assigned," HR Dive's senior editor, Kate Tornone, weighs in on employment trends, compliance best practices and, of course, the situations that require you to go above and beyond your normal duties. Today: keeping an eye on the ADA’s core requirements during a time of transformation.
When the ADA Amendments Act was passed in 2008, I was exclusively covering the ADA. Courts were all over the place on several of the law's provisions, and employees and employers spent a lot of time litigating the definition of "disability," arguing over whether cancer, for example, substantially limited someone's major life activity of, say, walking — a threshold requirement that wasn't exactly easy to meet.
The Amendments Act aimed to do away with all of that. "Major bodily functions" were added (on the list was "normal cell growth"), all but assuring that cancer and many other impairments would qualify someone for the law’s coverage. And while the statute's overhaul was the biggest news a journalist on the ADA beat could hope for, I assumed it meant the end of these interesting cases.
But here we are, a decade later, and courts are still wrestling with many of the same issues, although they often look a little different. Accommodation requests often involve telework arrangements, and shifting marijuana laws are raising new questions.
But so much of the litigation is still focused on the ADA's core pillars, like the interactive process and essential functions. And once in a while we still see a case litigating the definition of disability. The good news is that this year's rulings show that when employers make a good-faith effort to comply with the law and get these basics right, things often turn out OK.
The definition of 'disability'
Cases examining the definition of "disability" are nowhere near as common as they used to be, but once in a while one makes its way to an appeals court.
Earlier this year, for example, the 5th U.S. Circuit Court of Appeals upheld a jury’s decision in Benson v. Tyson Foods, Inc. (No. 17-40161 (5th Cir. May 1, 2018)) that an employee had no disability and therefore was not protected from discrimination based on her impairment. The employee had broken several bones in her ankle, requiring multiple surgeries. But a doctor testified that it had healed correctly and that she required no further treatment. She also played basketball and worked two jobs that required standing.
Noteworthy, however, is the fact that the employee "admitted to fictionalizing details in the initial account of her foot injury, thus undermining the credibility of her testimony," according to the court. The case is so fact-specific that it's not really a win for employers hoping for guidance on whether an employee with a broken bone has a disability. But it shows that courts will still entertain this argument and wade into definition-of-disability territory when they need to.
On the other hand, we're still seeing a good deal of litigation on the interactive process, the informal back-and-forth that's supposed to happen when employers and employees are looking for an accommodation.
Experts have long said that a well-documented process, undertaken in good faith, can make or break an employer's defense in an ADA suit, and this year's opinions held true to that. In Sharbono v. Northern States Power Co. dba Excel Energy, Inc. (No. 16-432 (8th Cir., Sept. 6, 2018)), for example, the 8th Circuit held that multiple accommodation attempts demonstrated an employer's good faith participation in the process, even though it never found a workable accommodation.
On the other hand, the 6th Circuit wasn't buying Dollar General's "accommodate thyself" approach in EEOC/Linda Atkins v. Dolgencorp LLC., dba Dollar General Corp., (No. 17-6278 (6th Cir., August 7, 2018)). Add that to the list of "don'ts" for your managers.
Essential functions — the things an employee must be able to do with or without an accommodation to be eligible for the law’s protections — remain one of the most hotly contested items in ADA litigation. Why? Because technology is changing work.
We're still seeing the standard essential function questions, of course, and they generally turn on the facts of each individual case. For example, the ability to work a 12-hour shift isn't necessarily essential, one appeals court said, but the ability to work overtime and work a rotating shift can be, said two others.
But as more employees are able to do their work remotely, courts are increasingly finding that a full-time presence isn't necessarily essential. That's the conclusion the 6th Circuit reached in considering an HR generalist's job in Hostettler v. The College of Wooster (No. 17-3406 (6th Cir., July 17, 2018)).
But courts are still deferring to an employer's judgment when reasonable. The 9th Circuit, for example, said in Ogden v. Public Utility District No. 2 of Grant County (No. 16-35295 (9th Cir., May 16, 2018)) that regular attendance can be essential for a supervisor.
When it comes to specific accommodations, policy exemptions remain a popular one, although the requests certainly are evolving. The 3rd Circuit, for example, in Ruggiero v. Mount Nittany Medical Center, Mount Nittany Health System d/b/a Mount Nittany Health (No. 17-2227 (3rd Cir. June 5, 2018)), revived the claims of a nurse who alleged that her employer failed to accommodate her anxiety, which prevented her from meeting the company's vaccine requirements.
But, the old standbys persist. Employees — even those in HR — are still asking for new supervisors, and the 3rd Circuit is still positive that's not a reasonable accommodation.
And, of course, there's leave. A 2017 ruling (Severson v. Heartland Woodcraft, Inc., No. 15-3754 (7th Cir. Sept. 20, 2017)) that had the potential to reign in leave as an accommodation hasn't done so yet, so far failing to create the momentum in other circuits that some had hoped for. And in fact, courts are already starting to chip away at that ruling; one that came shortly thereafter, Golden v. Indianapolis Housing Agency, (No. 17‐1359 (7th Cir. 2017), cert. denied, No. 17-1113) adhered to Severson, but not without calling it into question.
Stick to the basics
What all of these 2018 rulings tell me is that courts still value the basics. Employers are generally heeding the U.S. Equal Employment Opportunity Commission's advice not to get hung up on the definition of "disability" — but courts will entertain your arguments if they're valid.
Those companies that participate in the interactive process in good faith and document the process often fare well in court, as do those who are thoughtful about which functions must truly be designated as "essential," and can back up such decisions with evidence.
Technology, culture shifts and other forces may be reshaping case law on which exact duties are "essential" and which exact accommodations are "reasonable," but employers with a deep understanding of the law’s core requirements will be in the best position to navigate those changes.