Forcing an employee to take leave is not a reasonable accommodation. The ADA requires employers to make reasonable accommodations to known disabilities of its employees. A specific accommodation, such as a ramp, is not required if providing it would be an undue burden on the employer. The ADA can require a lot of employers. And it only takes one employee to force a change in the culture.
Some employees have very serious needs that simply cannot be met working in the office. And even though many employers have allowed employees to work from home some of the time, many agencies are still allergic to telework and especially anything like full-time telework.
Well, what do you do if you suddenly have a disability that prevents you from coming into the office? It doesn’t require a huge leap of imagination to see a bad car wreck leading to a disability that prevents an employee from coming to work or being at work. Certainly there are other disabilities that would for a variety of reasons prevent an employee from continuing to work if he had to do so in an office or wherever he typically worked.
Sick leave is not an accommodation when telework could substitute
A lot of employers make the mistake of forcing employees to take sick leave or other leave instead of accommodating them. Sick leave can be a reasonable accommodation if the employee wants it. However, forcing an employee to take leave means that she cannot put in her full-time work. It’s not a reasonable accommodation to make someone essentially pay for their own job if there is a reasonable alternative.
In a somewhat recent case, the EEOC confirmed that federal agency employers can’t force employees to take leave instead of some other accommodation that would allow them to keep working. In a lot of cases, teleworking would allow the employee to keep working while not coming into the office. Forcing the employee to take leave instead of allowing the employee to telework can be an ADA violation.
While an employer may choose between effective accommodations, forcing an employee to take leave when another accommodation would permit an employee to continue working is not an effective accommodation.See Denese G. v. Dep’t of the Treasury, EEOC Appeal No. 0120141118 (Dec. 29, 2016).
Employers can’t use meetings and trainings as an excuse for not providing telework
Another related problem is when the employer believes that teleworking would not allow the employee to attend trainings and meetings. Sometimes an employee must be present for trainings and meetings. But it is the rare case that such meetings are so frequent that teleworking otherwise is not a feasible accommodation.
This occurred recently in a case before the EEOC, Jona R. v. Department of State, Agency, EEOC Appeal No. 0120182063 (Jan. 23, 2020). The employee in that case had only asked for situational telework to stay home when she had flare-ups of her intestinal disability. The State Department claimed that it needed the employee to attend meetings and trainings. State admitted, however, that such meetings were only “intermittent.” Instead, it forced her to use her earned leave. The EEOC held:
The [Department of State] also [claims] that it accommodated Complainant by permitting her to take leave when she experienced medical symptoms that made it difficult for her to commute or work in the office.While an employer may choose between effective accommodations, forcing an employee to take leave when another accommodation would permit an employee to continue working is not an effective accommodation. [ ] In this case, the Agency failed to provide Complainant with the effective accommodation that would have allowed her to continue working. Hence, we find that the Agency failed to provide Complainant with a reasonable accommodation for her disability when it did not approve her for situational telework.Jona R. v. Department of State, Agency, EEOC Appeal No. 0120182063 (Jan. 23, 2020).
The employee won her disability discrimination case and was awarded damages and attorneys’ fees.