What are 'reasonable accommodations'?

A recent court of appeals decision involving a disability discrimination and retaliation charge against Costco Wholesale Corp. is a reminder to HR professionals to be cautious when determining reasonable accommodations for disabled workers.

In Hirlston v. Costco Wholesale Corp., an Indiana district court jury dismissed Karen Hirlston’s claim that Costco failed to properly accommodate her physical disabilities in a way that would have allowed her to keep her position as Optical Manager.

After finding that Hirlston had delegated essential work tasks to other staff members, and had been “acting contrary to her doctor’s restrictions,” according to court documents, Costco placed her on involuntary leave and then assigned her to another job with less pay.

Hirlston charged Costco with disability discrimination and retaliation under the Americans with Disabilities Act (ADA). Although Costco was ultimately found not liable for the charges, there were several key places where different actions could have saved the corporation costly litigation and lawyer’s fees, according to employment lawyer Rafael Nendel-Flores of Clark Hill.

Workplace reasonable accommodations: who qualifies?

To put it simply, it is up to the employer to ensure that all possible reasonable accommodations are determined and discussed with the employee in question, before decisions are made, Nendel-Flores told HRD in an interview.

There is an “interactive process”, he said, that must be conducted in each case of potential disability accommodation for an employee.

The process must be documented, and this is where many employers misstep, Nendel-Flores said – communicating clearly to the allegedly disabled employee. In some jurisdictions, including California, failure to complete this process could result in discrimination charges, even if accommodations were eventually provided.

“Particularly if a decision is made that a particular work restriction cannot be accommodated, it's important to document the ‘why,’ and that decision making process,” he  said. “Because if there's subsequent litigation, and then there's a lack of documentation, unfortunately, that will be used against the employer … it's really important to have contemporaneous documentation of that analysis.”

Reasonable accommodations not a simple matter

Hirlston had been an optical manager at an Indianapolis Costco for several years when her store began planning for renovations to her department, which would structurally make it impossible for her to continue in the role while keeping with her doctor’s restrictions – for example, desktop computers were being replaced by in-counter monitors, which would require Hirlston to stand for longer periods than she was allowed by her doctor.

When she discussed accommodations with Costco, the company decided her proposed accommodations, such as a powered sit-to-stand wheelchair, were not reasonable, and that she was no longer qualified for the position. She was placed on leave and then relocated to a lower paying job, and alleged in court that Costco had “rushed” the process before reasonable accommodations could be found.

Costco argued that Hirlston was not qualified for the manager position without “workarounds” like asking colleagues to perform some of her tasks. In this context, workarounds are only appropriate if they are of non-essential job duties, Nendel-Flores said.

An important note for HR to remember is that proposed reasonable accommodations are not limited to what an allegedly disabled employee proposed, he said. Previous court decisions have ruled that an employer “must do more than sit on its hands” and has a duty to “craft a reasonable accommodation,” court documents stated.

Reasonable accommodations for mental health and invisible disabilities

If an employee requests work accommodations who does not have an obvious disability, said Nendel-Flores, an employer may ask for justification and for the specific restrictions.

They cannot, however, ask for justification where the disability is evident, such as a physical disability or vision impairment.

In the case of a disorder or mental condition such as anxiety, HR can request a doctor’s note that lists the specific job restrictions and requirements. It’s important to be mindful of local laws around privacy, he said, and recommended not asking for specifics of diagnosis.

“At the end of the day, what's most important really isn't what the condition is, it’s ‘What are the work restrictions, and can we accommodate them?’”

Pitfalls for HR to avoid while deciding reasonable accommodations

When faced with accommodation requests that may seem overly complex or difficult to implement, employers and HR professionals tend to default to placing an employee on leave until the restrictions have passed.

“Employers can walk into a failure to accommodate or a retaliation claim there,” Nendel-Flores said. “So what needs to happen is you really need to dig in and do the analysis as to whether or not the restrictions can be accommodated.”

If it is determined that there really is no way the employee can perform essential job functions, the employer must look for another position the individual is qualified for, with equal pay or benefits. If that is not available, then a lower paying job will be sufficient.

What many employers don’t know, he said, is that even upcoming positions that are relevant also qualify for this placement. For this reason, he recommends HR look outwards to 60 days in advance for possible job placement for the employee.

“You can never guarantee that someone's not going to file a lawsuit,” said Nendel-Flores. “But you can mitigate the risk of litigation, if you're engaging in that interactive process and the employee understands that the employer went through the analysis.”