ADA and reasonable workplace accommodation in CA
March 14, 2012 5:36 PM   Subscribe

ADA, reasonable accommodation in the workplace, and supervisor resigning: I have questions. (This is in California)

I am a full-time, exempt, salaried employee in CA covered by the Americans with Disabilities Act due to treatment for a serious illness (and now for chronic side effects related to treatment). My accommodation has consisted of occasionally working at home – on average maybe two mornings a week (then I come in to the office around lunch), and one or two full days each month. The vast majority of my job duties can be done via telecommuting, and my supervisor and colleagues have never indicated that this has posed any hardships for them. I have consistently received extremely strong employee evaluations and even received a (very rare) bonus last year. If we weren't in a promotions freeze, I would be in line for one. (I have worked here nearly ten years.)

However: the management style and general workplace culture of our organization has, over the past few years, grown chaotic and toxic, and my supervisor has confided in me that she has just resigned. I suspect that the fact that our workplace has accommodated me so well is due largely to her intercession with HR and other higher-ups.

We know who my supervisor’s replacement will be; it is someone from an outside (but similar) organization in our same city. There is reason to believe that New Supervisor is not sympathetic towards employees working at home.

My questions: if New Supervisor is indeed not sympathetic, does their opinion automatically alter what is considered a reasonable accommodation for my disability? Or does my track record of successfully doing my job while working at home 10-20% of the time establish, on the face of it, that the accommodation is reasonable? Is this something I need to bring up with HR before the new supervisor arrives, in order to establish that what has been considered reasonable for the past several years will continue to be considered reasonable in the future? (My HR rep has been pleasant and supportive in the past, but my natural inclination is to relate to HR departments in general with caution, as I feel that they’re ultimately there to watch out for the employer’s interests, not necessarily mine. Also, despite the fact that I have had good evaluations, etc., I have absolutely no reason to believe that upper/executive management cares if I stay on the job or not, as they have made it very, very clear that they don't care if *any* employees outside the inner circle stay or go at this point. I would be more than happy to leave the job myself and go freelance, except for the fact that for obvious reasons, I can't lose my health insurance, and I can't afford COBRA.)

I would prefer to hear from people who have some specific knowledge or experience in the ADA, employment law, and/or HR, rather than just speculation. Thank you.
posted by anonymous to Work & Money (4 answers total) 2 users marked this as a favorite
You should really talk to JAN. The thing about ADA accommodations is that you can be entitled to reasonable accommodations, and yet not be entitled to the ones you like best - something they like may be just as reasonable. It's complicated.

Get whatever you can get in writing (print out emails, etc.) and call or email JAN, letting them know the whole story. Document your timeline, your exact limitations, have your FMLA or other medical documentation on hand.

They're really nice and helpful.

I am an HR worker who focuses more on the FMLA side than the ADA side - we have an organization-wide ADA coordinator (and by the way, you might have one of those, too.) As soon as the ADA is invoked, all the rest of us hightail it out of the room and let him deal with it. :) But you can MeMail me if you want to talk.

See also this EEOC publication, specifically on on reasonableness and preferences.
Is an employer required to provide the reasonable accommodation that the individual wants?

The employer may choose among reasonable accommodations as long as the chosen accommodation is effective. Thus, as part of the interactive process, the employer may offer alternative suggestions for reasonable accommodations and discuss their effectiveness in removing the workplace barrier that is impeding the individual with a disability.

If there are two possible reasonable accommodations, and one costs more or is more burdensome than the other, the employer may choose the less expensive or burdensome accommodation as long as it is effective (i.e., it would remove a workplace barrier, thereby providing the individual with an equal opportunity to apply for a position, to perform the essential functions of a position, or to gain equal access to a benefit or privilege of employment). Similarly, when there are two or more effective accommodations, the employer may choose the one that is easier to provide. In either situation, the employer does not have to show that it is an undue hardship to provide the more expensive or more difficult accommodation. If more than one accommodation is effective, "the preference of the individual with a disability should be given primary consideration. However, the employer providing the accommodation has the ultimate discretion to choose between effective accommodations."
posted by SMPA at 5:48 PM on March 14, 2012 [3 favorites]

SMPA is correct. An employee gets only a "reasonable" accommodation, not the most convenient accommodation, or the one that suits their lifestyle the best. Here are the steps that the regulations implementing the ADA require the employer to take:

(1) Analyze the particular job involved and determine its purpose and essential functions;

(2) Consult with the individual with a disability to ascertain the precise job-related limitations imposed by the individual's disability and how those limitations could be overcome with a reasonable accommodation;

(3) In consultation with the individual to be accommodated, identify potential accommodations and assess the effectiveness each would have in enabling the individual to perform the essential functions of the position and;

(4) Consider the preference of the individual to be accommodated and select and implement the accommodation that is most appropriate for both the employee and the employer.

So, as you can see, the employee's preference is part of the equation, but the bottom line is that an employer must simply be able to find an accommodation that reasonably allows the employee to perform the essential functions of the job.

As a practical matter, if your HR department and new boss have any sense at all, they'll let you continue this arrangement--this has got nothing to do with "working from home," and everything to do with accommodating a disability. From an employer's perspective, correctly negotiating this process is a huge challenge, and their perspective is likely to be that if it ain't broke, don't fix it. Changing the way they treat you opens them up to disability discrimination claims, failure to accommodate claims, and maybe retaliation claims, even. And that is something they certainly don't want.

For that reason, HR is your friend, actually--they have seen that his accommodation works and it is truly in their self-interest to keep it working. Accommodation issues are a headache, and someone in HR will be motivated to keep a working accommodation in place rather than rock the boat just because some new boss takes a dim view of telecommuting.

If you see this going sideways, all you need to do is engage a lawyer, and that will get your company's attention in a huge way. It is, of course, expensive to have them write even a few letters, but I promise you, it is very uncomfortable for employers in that position--they fear retaliation claims if there are any changes in your employment circumstances.

Also, I'm not aware how California's disability rules differ from the ABA. California generally is very favorable to the employee, so you may find that you have even more protection than what the ABA gives you.

Also, again as SMPA mentioned, the Job Accommodation Network is a fabulous resource for this, and you should look there right away.
posted by MoonOrb at 6:39 PM on March 14, 2012 [1 favorite]

EEOC factsheet on telecommuting. EEOC guidance document (more authoritative/"official") on reasonable accommodation, see question 26.
posted by ClaudiaCenter at 8:31 PM on March 14, 2012

In the fact pattern you describe, the issue is likely not "reasonable" (telecommuting is reasonable, see EEOC), "undue hardship" (none described), or "qualified" (you are qualified, see years of experience and performance reviews, but see below for how that might be altered).

One issue could be whether the accommodation is needed. To be required under the ADA or the FEHA, an accommodation must be needed by the individual. A new supervisor might inquire as to whether you truly need the accommodation to perform your job duties successfully or to enjoy equal employment opportunity (e.g. to work while protecting your health). They might request a doctor's note confirming your need. They might suggest alternatives to occasional telecommuting for you to meet your disability needs.

A new supervisor might implement new systems that might change your essential functions. E.g. if every day were to start with a mandatory meeting to review goals, that might arguably change your essential functions. If attending such a meeting were actually an essential function, then that would need to figure in to your accommodation. An accommodation cannot eliminate an essential function.

Information about accommodations in place are supposed to be communicated from one manager to the next manager, but this frequently does not happen. Typically an individual who wants to make sure that an accommodation is continued would contact HR, or their manager directly.

You can make a phone or in-person appointment with the Workers' Rights Disability Law Clinic if you need more advice and counseling. 415-864-8848.
posted by ClaudiaCenter at 9:19 AM on March 15, 2012 [1 favorite]

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