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Your Employee Matters


By August 1, 2010No Comments

In Colwell vs. Rite Aid Corporation, defense counsel posed a unique argument that the court quickly dismissed. Essentially, a clerk at Rite Aid suffered from glaucoma and asked that she have her shift changed from nights to days since she felt it was dangerous to drive at night, given her vision problems. The manager refused to make the requested accommodation, saying it would not be fair to the other employees who would, of course, also prefer the day shift over the night shift There were also concerns that seniority and other factors justified not providing her the requested accommodation.

In a last-ditch effort to convince the court in the reasonableness if their denial, Rite Aid argued that she was fine while she was at work, where she did not need an accommodation, and that the act of getting her to work was not their problem. As you can imagine, the court made mincemeat of this argument, essentially saying that changing someone’s work schedule is a reasonable accommodation.

Here’s the specific language of the ADA

“The term ‘reasonable accommodation’ may include a) making existing facilities used by employees readily accessible to, and usable by, individuals with disabilities; and, b) job restructuring, part-time, or modified work schedules (emphasis added), reassignment to a vacant position, acquisition; or modification of equipment or devices; appropriate adjustments or modifications of examinations, training materials or policies; the provision of qualified readers or interpreters and other similar accommodations for individuals with disabilities.

As a side note, the employee quit, claiming a “constructive discharge: because of the failure to accommodate.” Although the court agreed with her accommodation argument, it did not agree with her constructive discharge case because she made little effort to resolve the accommodation issue.

Remember this: A company must engage in accommodation unless it creates an “undue burden.” The courts have reminded us that this does not mean an inconvenience for the employer; it means an “undue burden’ – a standard that Rite Aid could not meet. When discussing the breakdown in the interactive process which led to the workers constructive discharge, the court reminded us that, “A party who fails to communicate, by way of initiation or response, may also be acting in bad faith. In essence, courts should attempt to isolate the cause of the breakdown and then assign responsibility … the last act in the interactive process is not always the cause of a breakdown … the court must examine the evidence as a whole to determine whether the evidence requires a finding that one party’s bad faith caused the breakdown.”

Lesson: Don’t forget about the ADA language set forth above. The effort to make these accommodations is an employer’s obligation unless it results in an undue burden. Don’t give up on the interactive process. Employers run into trouble when they pre-suppose that something would be an undue burden to the company. Our advice is that unless safety, security, or other critical issues are involved, you should let the employee attempt the accommodation and only then determine if it is an undue strain on the employer.