Thursday, May 4, 2017

Check Your Map: The Changing Landscape of Reasonable Accommodation

We recently helped a client work through a collection of reasonable accommodation issues.  In doing so, we realized that we were dealing with questions that wouldn’t have come up 10 years ago, or maybe even 5 years ago.  Regulations, case law, science, technology, and politics have changed what’s required and what’s reasonable.

Legal fundamentals haven’t changed.  The Americans with Disabilities Act and comparable state laws require that some employers (generally, those with 15 or more employees) provide reasonable accommodation to qualified applicants and employees with physical or mental disabilities.   Title VII and its state counterparts require accommodation of religious beliefs in certain circumstances and prohibit discrimination based on pregnancy and childbirth-related conditions.   So what has changed, and how do those changes impact an employer’s obligations to accommodate?

There is some new law.

In 2008, the Americans with Disabilities Act Amendments Act amended the ADA to create a broader definition of physical and mental disabilities. The result is that a broader range of conditions must be accommodated. The Genetic Information Nondiscrimination Act of 2008 (GINA) impacts the medical information employers can use to assess and accommodate disabilities, and reinforces the ADA's restrictions on the gathering and use of employee medical information.  The Patient Protection and Affordable Care Act passed in 2010 (and now under attack by the House of Representatives), reinforced prohibitions on pregnancy discrimination by amending the FLSA to require that employers with 50 or more employees provide lactating mothers with reasonable break time and facilities for expressing breast milk.

There have also been developments in state laws that relate to reasonable accommodations.  Several states now require employers to treat pregnancy like a disability and provide reasonable accommodations to pregnant employees, and several states and municipalities require employers to provide reasonable break time and location for expressing milk following the birth of a child. In addition, at least 29 states have passed laws allowing the use of medical marijuana. Although, as we note below, an employer’s obligation to reasonably accommodation use of medical marijuana is far from settled, there is no doubt that the issue will be raised and litigated in the years ahead.

There are new regulations and agency interpretations of the law.

In 2016, the EEOC issued a new resource page explaining its interpretation that the ADA requires employers to treat requests for leave as requests for reasonable accommodation, and in 2013 it published guidelines in addressing accommodation of religious practices, including dress codes. The agency has also announced that it treats lactation as a pregnancy-related medical condition that requires accommodation. 

There are some new court decisions.

Reasonable accommodation issues continue to be litigated around the country, and sometimes result in important holdings that impact employers' responsibilities.  

In EEOC v. Abercrombie & Fitch, the U.S. Supreme Court held that an employer could not refuse to hire an applicate if the decision was motivated by avoiding the need to accommodate a religious practice, such as wearing a hijab, even if no reasonable accommodation was expressly requested.

In 2015, in EEOC v. Ford Motor Company, the Sixth Circuit held that Ford Motor Company was not required to provide telecommuting as a reasonable accommodation under the ADA.

In 2012, the Ninth Circuit held that the ADA does not protect employees from discrimination based on the use of the medical marijuana, even in states that have legalized medical marijuana, because marijuana remains a controlled substance under federal law. The Massachusetts Supreme Court is currently considering whether an employer unlawfully discriminates by firing an employee for medical marijuana use.

In Young v. United Parcel Service, decided in 2015, the Supreme Court outlined the requirements for a pregnant employee to establish a prima facie case of disparate treatment based on an employer’s refusal to provide a reasonable accommodation during pregnancy.

There are all kinds of new technology.

Assistive technology developed over the past decade allows people with disabilities to perform the key functions of their jobs and increases the opportunities for reasonable accommodation.  A broad range of tools have become available, including mobile technologies and electronic accessibility tools. Employer and employees should consider these technologies in deciding whether accommodation is possible and whether it can be provided without undue hardship for the employer.

New technology can also create barriers for those with disabilities. For example, online recruiting tools can be difficult for some to navigate. Employers should not forget that reasonable accommodation is required during the application process, and should be aware of accessibility issues when choosing all equipment, including technology.

Some accommodations cost less.

An accommodation is reasonable if it allows an individual with a disability to apply for a job, perform job functions, or enjoy equal access to benefits available to other individuals in the workplace without creating an undue hardship for the employer.  Cost has always been a factor in the accommodation an employer can reasonably offer. Innovations and changes driven by technology may mean that accommodations cost less.  

There are societal changes that matter.

The number of women in the workplace has been steadily increasing since World War II. Women today are more likely to work while pregnant, to work further into pregnancy, and to return to work while breastfeeding. This means that the accommodation of lactating mothers will be an issue for more employers, more often.  Medical and recreational marijuana use have been legalized in some jurisdictions, and marijuana use is more widely accepted than ever before.  Employers are likely to be challenged by requests for the accommodation of medical marijuana, and may be asked to accept drug test results that indicate recreational use. The number of religious discrimination complaints has increased as a result of a backlash against those who practice (or are perceived as practicing) Islam, and many of those complaints involve issues of accommodation. 

Like the rest of employment law, reasonable accommodation is a subject that requires regular attention from HR professionals, business owners, and in-house counsel.