Hunton Employment & Labor Perspectives

Bending over backwards to help an employee with a disability can leave the employer in an awkward position.  With changes to the Americans With Disabilities Act (“ADA”) and its regulations last year, employers may be more likely to offer accommodations.  More conditions will be deemed to fall within the definition of a disability, and employers likely will err on the side of providing accommodations.  However, employers should continue to exercise sound judgment in deciding what accommodations to offer.

A recent decision out of Ohio provides a good illustration.  In Jacobs v. Marietta Memorial Hospital, the District Court for the Southern District of Ohio held that a hospital manager’s disability and retaliation claims would proceed to trial because the Court could not find that regular presence during core office hours was an essential function of her job. 

The manager, Ann Jacobs, had been diagnosed with bipolar disorder early in her 20 years of employment with the hospital.  Her supervisor had allowed her to work at home when needed in light of the condition.  Jacobs regularly received positive performance evaluations. 

In early 2005, Jacobs began working for a new supervisor, who concluded that Jacobs should be in the office during core business hours because she supervised other employees.  Midway through 2006, the new supervisor revoked permission for Jacobs occasionally to work from home.  When Jacobs sought permission to work at home, the new supervisor told her that she had to use paid time off and give three days notice.  Jacobs later received a poor performance evaluation, was placed on a performance improvement plan, and later was terminated for poor performance. 

Jacobs brought suit against the hospital, claiming disability discrimination and retaliation.  The hospital moved for summary judgment, arguing that Jacobs was not protected by the ADA because she could not perform an essential function of her job--regularly working in the office during core business hours.  The Court refused to dismiss the lawsuit because it could not determine that regular presence in the office during core business hours was an essential function of Jacobs’ job, given that she had worked from home sporadically for a period of eight years and had received positive performance evaluations. 

When an employee requests an accommodation due to a disability, the employer has an obligation to work with the employee to determine whether there is a reasonable accommodation that will enable the employee to perform all the essential functions of a job.  An employer is not required to eliminate an essential function in order to accommodate an employee.  If the employee is relieved of some duties as part of an accommodation, it will be difficult for the employer to establish later that such duties are essential functions of the job.  Thus, employers should be careful to preserve the job’s core functions when trying to accommodate an employee.