When the new amendments to the the Americans with Disabilities Act took effect in 2009, the law became more employee-friendly by expanding the definition of what constitutes a disability.
That said, the law doesn’t (yet) require an employer to have a sixth sense about whether a disabled employee requires a reasonable accommodation.
Generally, an employee has to ask for it. Or, as we find out after the jump, an ADA failure-to-accommodate lawsuit is pretty much doomed.
Before, we get with legal muckety-muck, may I remind you that nominations close shortly for the ABA Journal’s Blawg 100 Amici, it’s annual list of the 100 best legal blogs. Does The Employer Handbook belong on that list? Is Miller High Life the champagne of beers?
You know what to do. Nominate this blog. Yes, I’m saying is that what to do is click this link, nominate this blog, and then come back to finish this post.
[And if you need some nominating music...]
Now about that failure to accommodate claim…
Jeremy Anderson worked for ProSource, a copier company, as a warehouse clerk.
(As opposed to makin’ copies)
At one point, Anderson was asked to deliver some copiers. In late May 2010, Anderson told his supervisor that he could not drive at all because he had epilepsy, and brought in a doctor’s note as support.
After Anderson informed ProSource about his restrictions, the company restructured his job to have him do those warehouse clerk functions that he could perform, given his diagnosis.
Eventually, against Anderson’s wishes, ProSource placed him on FMLA. When his FMLA expired, Anderson was still not medically cleared to drive. So, ProSource determined that he could not do certain essential functions of his job and terminated his employment.
Anderson sued, alleging a failure to accommodate his disability.
A failure-to-accommodate claim generally requires…yep…a request.
Anderson lost. Why? Because, while the ADA requires an employer to provide a reasonable accommodation to a qualified individual with a disability, when that accommodation will allow the individual to perform the essential functions of the job, the thing is, the employee generally needs to request one.
Yeah, I know, shocking. That’s how it works. Tell ’em Southern District of Ohio:
“Even assuming that Anderson’s epilepsy was a disability for purposes of the ADA, his claim fails because he acknowledges that he never requested any accommodation, much less any reasonable accommodation…A plaintiff must propose an accommodation and show that it is objectively reasonable. Plaintiff did not do so. He merely demanded that he be allowed to do the non-driving part of his job while transferring certain essential functions of his job to other employees. The ADA does not require this.”
So, the employer here wins. Except for all those attorney’s fees the company had to pay its lawyers.
How can something like this be avoided? Make sure that your employee handbook includes a section on requesting workplace accommodations and your supervisors are trained on how to address requests for accommodation.