Fitting the Pieces Together: Return to Work, ADA, and Reasonable Accommodations

[fa icon="calendar'] Nov 9, 2015 8:00:00 AM / by Deborah Lechner

As any employer knows, the Americans with Disabilities Act (ADA) creates an obligation for covered employers to provide eligible employees with disabilities reasonable accommodations to enable them to perform the essential functions of their jobs. The difficulty with this obligation for many employers lies in understanding exactly what their responsibilities are in terms of accommodation.

A lawsuit decided by the 7th Circuit on July 24, 2015 offers some clarification and valuable insight into what constitutes legally defensible, ADA compliant accommodation: reasonable accommodation does not necessarily mean that an employer must agree to the specific accommodation an employee suggests or prefers.

This suit was filed on behalf of Mark Swanson, who resigned from his position as a Detective in the Village of Flossmoor's police department after suffering two strokes. Swanson had his first stroke on July 31, 2009, then took a leave of absence under the Family and Medical Leave Act (FMLA) until August 19, 2009. He returned to work with a doctor’s note that stated: "Part-time work suggested until patient seen by neurologist on 9-18-09." The employer allowed Swanson to work three days a week, and Swanson used accrued medical leave for the other two days per week. This allowed him to continue to receive full pay despite working just three days a week.

In September, Swanson requested to be placed on light duty. That request was denied, and Swanson continued to use accrued medical leave to work the reduced schedule recommended by his doctor until September 30, when he had his second stroke.

After that stroke, his doctor excused him from work until further notice. On November 17 Swanson submitted paperwork certifying that his status had not changed and requested FMLA leave retroactively to September 30. On December 16th his doctor released him to return to work with no restrictions. However, another medical incident caused his doctor to rescind that release, and Swanson then resigned, stating that he was physically unable to resume his duties, and applied for a disability pension. Additionally, Swanson requested that he be allowed to remain in unpaid leave of absence, despite his resignation, until February 6 to enable him to remain on the employer's health plan. That request was approved.

The ADA Claim and the Ruling

Swanson based his claim upon contentions that his employer violated the ADA by failing to consider light duty as an option or engage him in a sufficiently interactive process. The district court ruled that this claim had no merit, a ruling that was affirmed by the 7th Circuit. The court stated that the employer's manual clearly identified the decision to offer an employee light duty to be at the discretion of the employer. This accommodation was only to be considered when an employee submitted an acceptable physician's report specifying the worker's exact limitations, which would enable the employer to then assess whether or not suitable light duty was available.

Since Swanson's doctor did not recommend light duty, the employer was not obligated to offer it. Rather, the recommendation was part-time work, which the employer did honor. Furthermore, even if light duty was Swanson's preferred accommodation, the ADA does not entitle a disabled employee to the accommodation of his choice, but to a reasonable accommodation in view of his limitations and the employer's needs. Additionally, no accommodation was required after the second stroke, given the employee's statement that he could not perform the essential functions of the job.

Knowing the rights of an employer with regards to the ADA – including the response to employees' accommodation preferences – is key to ensuring the proper and defensible enactment of accommodations.

legal considerations in Physical Abilities Testing

Topics: Legal Issues

Deborah Lechner

Written by Deborah Lechner

Deborah Lechner, ErgoScience President, combines an extensive research background with 25-plus years of clinical experience. Under her leadership, ErgoScience continues to use the science of work to improve workplace safety, productivity and profitability.