One of the principal effects of the Americans With Disabilities Amendments Act will be to place greater emphasis on the determination of whether an employee seeking an accommodation is “otherwise qualified” for his or her position, and, if so, whether the employer has effectively engaged in the “interactive process.”
Both of these issues were addressed in the Aug. 24 decision of the U.S. District Court for the Eastern District of Pennsylvania in Brunson v. Peake . While the decision addresses an employer’s obligations under the Rehabilitation Act, the analysis and the accommodation standard is equally applicable to the ADAAA.
Back Injury Is Disabling
According to the court’s opinion, Lawrence Brunson was a food service worker at the VA Medical Center in Philadelphia, working at a Paygrade 2 position in 2005, when he injured his back when caught in the doors of a malfunctioning elevator. Brunson’s primary job at the time was to prepare meals, deliver food to patients and clean pots and pans after the meal. His essential duties required that he stand for long periods of time and lift heavy objects.
Brunson’s injury caused him to miss several months of work and he was returned to work with a note from his physician stating that he could sit for eight hours a day, while walking and standing for just two hours per day. Significantly, Brunson disagreed with this assessment, claiming that he could not work for eight hours a day and that he could stand for only 10 minutes at a time, according to the opinion. Regardless of the extent of Brunson’s limitations, it was clear that he could not perform the duties of his Paygrade 2 position.
Just a few days after returning to work, a VA physician recommended that Brunson be placed on light duty. This was rejected by Brunson’s supervisor on the basis that no light-duty work was available and, instead, Brunson was placed on indefinite leave.
Formal Accommodation Request
According to the opinion, Brunson subsequently submitted a formal request for accommodation in which he requested an appropriate chair and that he be permitted to make sandwiches, cut pies and distribute meal tickets. Although Brunson was given a chair after his request, he claimed that it was not sufficient to enable him to work productively. Further, Brunson’s duties were modified over the next two years, but he claimed that he was still required to stand and sometimes scrub pots for long periods of time. Brunson’s supervisors, however, claimed that Brunson was working only three hours per day, while taking rest breaks for the remaining five hours.
Brunson continued to request a greater accommodation and he was ultimately given a limited-time, light-duty assignment, the opinion said. When he could not return to his prior duties at the conclusion of the light-duty assignment, Brunson was terminated. Brunson subsequently brought suit against the VA for failure to accommodate under the Rehabilitation Act and for race discrimination under Title VII on the basis that a Caucasian employee had received greater accommodations than he had.
Accommodation Efforts Examined
While there was no dispute that the VA had engaged in the interactive process, the court examined in depth whether Brunson’s supervisors had done so in “good faith.” The court found that the good-faith requirement was based on the 3rd U.S. Circuit Court of Appeals’ decision in Taylor v. Phoenixville Hospital , in which the appellate court noted that “all the interactive process requires is that the employers make a good-faith effort to seek accommodations.”
“Good faith,” according to the Taylor court, can be demonstrated by evidence that the employer met with the employee, requested information about the condition at issue and its limitations, asked the employee about “what he or she wants,” showed some signs of having considered the request and discussed alternatives if the request is too burdensome.
The court found that the VA had taken most, if not all, of the steps that were indicative of good faith. Furthermore, there was no dispute that Brunson was not physically capable of performing his Paygrade 2 position — and that the sandwich-making and pie-cutting duties that he sought were reserved for Paygrade 3 employees.
Nevertheless, the court found there to be a genuine issue of fact regarding the VA’s good faith based upon the testimony of one of Brunson’s supervisors that he could have accommodated Brunson in a light-duty position for at least part of the time during which he had been placed on a leave of absence. There was also testimony that Brunson’s light-duty opportunities were limited by the VA’s desire to cut back on its usage of light duty.
Question Of Qualification for Job
The court also rejected the VA’s argument that it had not violated the Rehabilitation Act because Brunson was not “otherwise qualified” to perform the essential functions of his position. Although the court found that there was no dispute as to Brunson’s inability to, for example, scrub pots and deliver food, summary judgment was denied based upon the issues regarding the VA’s good-faith attempt to accommodate him.
Finally, the court found there to be a genuine issue of fact as to Brunson’s race discrimination claim, on the grounds that Brunson was able to identify a Caucasian employee who arguably was accommodated — under circumstances that he was not.
Clearly, Brunson’s message for employers and their counsel is that requests for accommodation must be taken seriously and opportunities for accommodation must be thoroughly exhausted, even where the employee seems to be unable to perform the essential functions of his or her position. We can expect to see more cases addressing accommodation requests and the interactive process as cases involving the ADAAA are more widely decided by the courts.
Sid Steinberg is a partner in Post & Schell’s business law and litigation department. He concentrates his national litigation and consulting practice in the field of employment and employee relations law. Steinberg has lectured extensively on all
aspects of employment law, including Title VII, the FMLA and the ADA