REASONABLE ACCOMMODATION FUNDAMENTALS

1. EMPLOYER HAS THE RIGHT TO CHOOSE THE ACCOMMODATION
   
   “The employer providing the accommodation has the ultimate discretion to choose between effective accommodations, and may choose the less expensive accommodation or the accommodation that is easier for it to provide.” 29 C.F.R. 1630.9 App For example, in Connolly v. Entex Information Services, Inc., 2001 U.S. App. LEXIS 26802 (9th Cir. 2001), the employer satisfied its duty to accommodate although the employee was denied reassignment to a preferred job. Rather, the employer offered the employee a job he previously performed satisfactorily, which the employee refused.

2. WHAT CONSTITUTES REASONABLE ACCOMMODATION?
   
   Reasonable accommodation may include, but is not limited to:

   • Making existing facilities used by employees readily accessible to and usable by persons with disabilities.

   • Acquiring or modifying equipment, tools or devices,

   • Job restructuring, modifying work schedules, reassignment to a vacant position;

   • Adjusting or modifying examinations, training materials, or policies, and providing qualified readers or interpreters;

   • Leave.

3. MODIFYING JOB DUTIES AS A REASONABLE ACCOMMODATION: REQUIRES CHANGES TO MARGINAL OR NONESSENTIAL DUTIES ONLY.
   
   An employer need only modify marginal job duties. Essential job duties never need to be modified.
   
   If essential duties are changed, the employer is stuck with the change. See Brown v. City of Tucson, 336 F.3d 1181 (9th Cir. 2003): “the Department's apparent willingness to allow her [a detective] to avoid night-time call-out — indicate that it was not an essential function.”
   
   If an employer does make temporary changes to essential duties, document that the change is a temporary modification, the essential nature of the modified duty, keep that essential duty in any evaluation of the job or performance appraisal of the employee.
   
   Light duty jobs, if provided, must be made available to disabled persons suffering from off-the-job problems and not limited to employees recovering from on-the-job injuries. EEOC Enforcement Guidance: Workers’ Compensation and the ADA, Question 28.

4. REASSIGNMENT TO ANOTHER JOB
   
   In reassignment, consider the following key points

   1. current employees only, not applicants, need to be considered for reassignment as an accommodation. See Bender v. Safeway Stores, Inc., 1997 U.S. App. LEXIS 22449 (9th Cir. 1997).

   2. Vacancies only – no obligation to bump another employee from a job. See Cassidy v. Detroit Edison Co., 138 F.3d 629 (6th Cir. 1998).

   3. No promotions as a reassignment.

   4. Employee must be qualified for the reassignment (with an accommodation if necessary).

   5. Training – only if normally provided.

   6. No inferior positions: must be “equivalent” in duties, compensation and benefits: Norville v. Staten Island University Hospital, 196 F.3d 89 (2d Cir. 1999).

5. WORK-AT-HOME AS A REASONABLE ACCOMMODATION
   
   For purpose of a reasonable accommodation analysis: consider that where work is performed is just another workplace policy that one may have to modify for certain jobs.
   
   Compare Humphrey v. Memorial Hospitals Association, 239 F.3d 1128 (9th Cir. 2001) (requiring that employee be allowed to work at home when some other medical transcriptionists are permitted to do so, but plaintiff failed to meet the employer’s requirements for being permitted to work at home)
   
   with Mason v. Avaya Communications, Inc., 357 F.3d 1114, 15 A.D. Cas. 153 (10th Cir. 2004) (where employer established that work at home was not a reasonable accommodation because attendance at workplace for purposes of supervision and teamwork were essential job functions for service coordinator with communications systems company).

6. UNPAID LEAVE AS A REASONABLE ACCOMMODATION
   
   Unpaid leave may be reasonable accommodation in certain circumstances: Nunes v. Wal-Mart Stores, Inc., 164 F.3d 1243 (9th Cir. 1999), and Humphrey v. Memorial Hospitals Association, 239 F.3d 1128 (9th Cir. 2001).
   
   But unpaid leave may not be reasonable for a small employer, as in Epps v. City of Pine Lawn, 353 F.3d 588 (8th Cir. 2003), where a six-month leave of absence was not required as a reasonable accommodation for a policeman with a small municipality.

7. WHETHER EMPLOYEE’S JOB MUST BE HELD OPEN
   
   “An employee with a disability who is granted leave as a reasonable accommodation is entitled to return to his/her same position unless the employer demonstrates that holding open the position would impose an undue hardship.”
   
   “If an employer cannot hold a position open during the entire leave period without incurring undue hardship, the employer must consider whether it has a vacant, equivalent position for which the employee is qualified and to which the employee can be reassigned to continue his/her leave for a specific period of time and then, at the conclusion of the leave, can be returned to this new position”
   
   EEOC Enforcement Guidance on Reasonable Accommodation and Undue Hardship, (10/17/02) at Question 18.
   
   Consider Nunes v. Wal-Mart Stores, Inc., 164 F.3d 1243 (9th Cir. 1999), where the court examined the company’s benefits policy allowing employees to take up to one year of leave and its regular practice of hiring seasonal employees to fill positions.

8. LEAVE FOR A DEFINITE VS. INDEFINITE TIME
   
   Another question regarding unpaid leave is whether an employer has to hold the job open for an indefinite period of time.
   
   See Teague v. Las Vegas Sands, Inc., 1997 U.S. App. LEXIS 7618 (9th Cir. 1997) --employer not required to provide “additional, possibly indefinite, leave” after giving “several extensions of his leave.”
   
   Humphrey v. Memorial Hospitals Association, 239 F.3d 1128 (9th Cir. 2001) – no right to repeated leaves “where there are plausible reasons to believe” that leave would not be effective, such as “the fact that a prior leave was granted and was unsuccessful.”
   
   Watson v. Lithonia Lighting, 304 F.3d 749 (7th Cir. 2002) – ADA does not require indefinite light-duty positions – employer maintained pool of light-duty positions for workers recovering from temporary injuries – setting aside light-duty positions indefinitely would close the pool to employees recovering from temporary injuries.

9. EMPLOYER CANNOT REQUIRE TREATMENT OR MONITORING MEDICATION AS A REASONABLE ACCOMMODATION
   
   An employer cannot force an employee to take medication or to get treatment as a reasonable accommodation. See Robertson v. The Neuromedical Center, 161 F.3d 292 (5th Cir. 1998) (“the decision to take or not take medication” is a “personal decision” for the individual, not “an accommodation option” for the employer).
   
   Monitoring medications would not be a reasonable accommodation. EEOC Enforcement Guidance on the ADA and Psychiatric Disabilities (3/25/97), Question 28.

10. EMPLOYER CANNOT REQUIRE EMPLOYEE TO ACCEPT A REASONABLE ACCOMMODATION.
    
    “A qualified individual with a disability is not required to accept an accommodation,
    . . . which such qualified individual chooses not to accept. However, if such individual rejects a reasonable accommodation . . . necessary to enable the individual to perform the essential functions of the position held or desired, and cannot, as a result of that rejection, perform the essential functions of the position, the individual will not be considered a qualified individual with a disability.” 29 C.F.R 1630.09

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