I’ve practiced law for over twenty years, mainly as an employment lawyer. In that time, I’ve lost track of the number of times that I’ve counseled employers on their obligations under the Americans with Disabilities Act. Some of those have involved accommodating employees with end-stage renal disease and adjusting work schedules to allow for dialysis appointments.
But, an accommodation request to perform dialysis at work? That’s a new one.
I read about it in this EEOC press release announcing an ADA lawsuit against a southern construction company. According to the press release, the EEOC filed a lawsuit yesterday in which it alleged that the employer refused to accommodate its office manager’s end-stage renal disease by denying her request to perform continuous ambulatory peritoneal dialysis (CAPD) on the employer’s premises so that she could maintain her full-time work schedule.
Now, I had never heard of CAPD. That makes sense because I’m not a doctor, and I don’t try to play one in my employment-law practice. I don’t like to pre-judge or stereotype accommodation requests either.
So, I checked one of my go-to resources: The Job Accommodation Network, which has an entire section on renal/kidney disease. Indeed, there are two forms of dialysis: hemodialysis and peritoneal dialysis. CAPD allows an individual to drain water and waste products out of the abdomen, into a bag, and then discarded — usually four times per day. So, I’m thinking once or twice at work. This medical article further notes that the actual process of filling and draining fluid takes roughly 30 minutes. So, maybe an hour total. That seems reasonable to me.
According to the EEOC, the alternative would have forced the office manager to lose around 50% of her work hours and pay as she had to leave work to undergo her dialysis treatments regularly.
The ADA does not require employers to provide employees with their “first choice” accommodation. However, assuming these allegations to be accurate, this is one of those situations where I would’ve done just that — like I often recommend — because the alternative disadvantaged her.
And now it disadvantages the employer too because it has to pay to defend (and perhaps settle or lose) an expensive ADA lawsuit with the EEOC as the plaintiff.