According to the federal district court in Mendillo v. The Prudential Ins. Co. of America, the answer is “yes.” But I struggle with this decision, because I think it ties an employer’s hands and undercuts the employer’s right to demand medical information under the Americans with Disabilities Act.
In this case, a call center employee was pretty seriously injured in a car accident. There were some performance issues that pre-dated her car accident, and they continued after her return to work. About four months later, the employee’s responsibilities were changed so that her off-line work was taken away and she did telephone work full-time. She told her supervisor that the full-time telephone work would exacerbate her back pain, since she was able to get up and stretch when she was doing off-line work. In fact, her back pain did worsen with the full-time telephone work, which caused her doctor to order that she cut back on her hours. In addition, her performance took an immediate and significant turn for the worse. She was able to improve her performance, but it fluctuated over the next year, finally resulting in her termination. She then sued, alleging a number of claims including that the company failed to accommodate her in violation of the ADA.
Now, the ADA requires employers to provide reasonable accommodations to the known physical or mental limitations of a disabled employee that would enable her to perform the essential functions of her job. As the court acknowledges, the employee has the initial responsibility to let the employer know that she has a limitation and needs an accommodation. She does not need to identify a particular accommodation that she wants or needs – once she brings her need for accommodation to the company’s attention, both the employee and the company are supposed to engage in an interactive discussion to determine the appropriate accommodation.
So far, so good. But here’s where I feel like the train might have left the rails. As the company argued to the court, the employee’s own doctor did not state that she was limited in her ability to sit for long periods of time, or that she needed some sort of sitting accommodation. The court, however, said that the employee had made it clear to her supervisor that she couldn’t sit for a prolonged period, and wanted to do offline work so she could take breaks from sitting. The court (quoting in part a decision from the federal appellate court) stated that:
an employer has a duty reasonably to accommodate an employee’s disability if the disability is obvious—which is to say, if the employer knew or reasonably should have known that the employee was disabled, whether or not the employee has requested an accommodation or even acknowledges that she has a disability.
Now, I had always understood the “obvious” disability to mean something that is open and indisputable – like a missing arm or blindness. That person is pretty clearly disabled, regardless of whether they admit it or not. Back pain, however, is one of those conditions that is, unfortunately, all too often fraudulently claimed – which is why it is important to have an educated medical opinion involved. As those of us on the management side know, what an employee thinks about her health condition is not always the same as what her doctor thinks. Having the doctor involved gives the employer at least a modicum of a somewhat neutral, presumably expert assessment of the employee’s actual medical condition and needs.
But what the court has done here is to make that expert assessment secondary to the employee’s own say-so. Because the employee said her back hurt and she couldn’t sit (or she gets headaches, or she has cancer), the court finds that the company now should take that as a given and provide a reasonable accommodation for it. Really? I just don’t think that’s right. I think my interpretation makes a lot more sense. And I think the EEOC would agree – its own internal document regarding reasonable accommodations for EEOC employees states that a disability is obvious “when it is clearly visible.”
Back pain and an inability to sit for prolonged periods? Not visible.