The duty to accommodate employees under the Americans with Disabilities Act (ADA) took an unanticipated turn when the United States Court of Appeals for the 5th Circuit seemingly expanded that duty to include actions that did not concern the essential functions of the job.
Pauline Feist was an assistant attorney general for the Louisiana Department of Justice. She requested from her employer a free on-site parking space to accommodate her disability, osteoarthritis of the knee. That request was denied because she could not show the employer how the parking space would assist her in performing the essential functions of her job. She sued the state of Louisiana for disability discrimination, claiming the state had failed to accommodate her. The trial court agreed with the state and granted summary judgment on the failure-to-accommodate claim.
Feist appealed the district court’s decision, arguing the ADA does not require a link between a requested accommodation and an essential job function.
Numerous courts have held that regular attendance is an essential job function, and several courts have upheld employee accommodation requests for parking spaces and commuting assistance on the basis that, if regular attendance was an essential job function, an employer could be obligated to reasonably accommodate a disabled employee who needed assistance with getting to and from work.
The 5th Circuit did not address those cases dealing with attendance as an essential job function. Instead, it relied upon the text of the ADA to find the terms of duty to accommodate an employee is not limited to the performance of essential job functions.
The ADA prohibits covered employers from discriminating against a qualified individual on the basis of disability. Discrimination includes failure to make “reasonable accommodations to the known physical or mental limitations of an otherwise qualified individual with a disability . . . unless such covered entity can demonstrate that the accommodation would impose an undue hardship.”
All parties and courts concurred Feist was a qualified individual with a disability that was known to the state. Therefore, the issue at hand was whether the state had an obligation to accommodate Feist in the matter she had sought.
Under the ADA, a 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, reassignment to a vacant position, acquisition or modification of equipment or devices, appropriate adjustment or modifications of examinations, training materials or policies, the provision of qualified readers or interpreters, and other similar accommodations for individuals with disabilities.
Thus, according to the 5th Circuit, the text of the ADA gave no indication an accommodation must facilitate the essential function of one’s position. Rather, it appeared the requested parking space would have made the employee’s workplace “readily accessible to and usable” by her under Section (A). It ordered the trial court to re-examine whether the state had fulfilled its reasonable accommodation obligation regardless of whether Feist’s proposed obligation would have enabled her to perform the essential functions of her job.
The 5th Circuit’s decision was initially greeted with alacrity by some commentators, or at least by their published headlines. They warned that the ADA now required employers to accommodate all disabled employees, for any purpose, and that, as a result of the Feist decision, there was no longer any requirement under the ADA of a nexus between a requested accommodation and an employee’s job functions. They seemingly ignored that the request for a parking spot was to enable Feist to get to work to perform her job. Commentators also harped on the fact that the employee was seeking a free parking spot, whereas conceivably the state could have offered Feist access to parking at the same rates paid by other employees and thereby satisfied its duty to accommodate her disability.
The first lesson of this case is that employers must seriously analyze all accommodation requests under the ADA, even when the requests only tangentially relate to performance of the job. Just remember: Showing up is 90 percent of life, so any accommodation that enables an individual with a disability to show up at work just may be reasonable.
The second lesson is to read beyond the headlines; we all spice up our headlines to attract the all-important eyeballs. Take the Cassandras of the world with a grain of salt and read any “startling” new decisions for yourself before coming to any conclusion.