Accommodation under the ADA

FARRIS BOBANGO 
A T T O R N E Y S A T L AW
901.259.7150
Rick Bennett
rbennett@farris-law.com


 

February 14, 2018

 

Employers do not have to provide an employee with their preferred accommodation under the Americans with Disabilities Act

 

The Americans with Disabilities Act (ADA) requires an employer to accommodate an individual with a disability where, absent undue hardship to the employer, doing so will enable that person to perform the essential functions of the job.

 

But, is an employer required to provide the reasonable accommodation that the individual wants? No. According to the EEOC:

 

The employer may choose among reasonable accommodations as long as the chosen accommodation is effective …. If there are two possible reasonable accommodations, and one costs more or is more burdensome than the other, the employer may choose the less expensive or burdensome accommodation as long as it is effective (i.e., it would remove a workplace barrier, thereby providing the individual with an equal opportunity to apply for a position, to perform the essential functions of a position, or to gain equal access to a benefit or privilege of employment) …. If more than one accommodation is effective, “the preference of the individual with a disability should be given primary consideration. However, the employer providing the accommodation has the ultimate discretion to choose between effective accommodations.” EEOC Enforcement Guidance: Reasonable Accommodation and Undue Hardship under the Americans with Disabilities Act, (29 C.F.R. pt. 1630 app. §1630.9 (1997).

 

A recent case out of New York has further explained that an employer is not required to grant an employee’s personal preference for an accommodation. In Flynn v. McCabe & Mack LLP, 2018 WL 794631 (S.D.N.Y. February 8, 2018), the employee was treated for cancer. As part of her recovery, the plaintiff exercised a lot. She also went to yoga classes. Indeed, at one point the plaintiff asked her employer to adjust her work schedule. According to the court’s opinion, “[e]vidently Plaintiff’s preferred yoga instructor’s class had changed to 4:30 p.m., and if she did not attend that class, she would have had to adjust her personal schedule to attend a 7:30 class or, presumably, find a different facility.” (Anecdotally, it doesn’t bode well for a litigant when the court prefaces that party’s version of the facts with “evidently”). “Evidently,” the employee did not like attending yoga classes on the weekends either, according to her deposition testimony.



So the employee asked that her work schedule be modified so that she could leave work early so as to attend the 4:30 p.m. yoga class.

 

The plaintiff’s preference for a particular yoga class notwithstanding, the court noted that she did not present a doctor’s note prescribing this particular yoga class nor was there anything to indicate that it was medically necessary for her to even take yoga classes as part of her recovery. Plus, at her deposition, the plaintiff “testified that it was a personal request so that she could go to a particular gym that was convenient to the office and reasonably priced.”

 

Based upon these facts, the employer denied the plaintiff’s request to attend her first choice of yoga classes. The plaintiff felt this denial was callous and a violation of her rights under the ADA. So she did what all red-blooded Americans do when they don’t like a decision of their employer, she filed a lawsuit. Fortunately for the employer, the Court did not agree with the plaintiff and dismissed her claim.

 

Plaintiff alleges that the denial of her request to modify her work hours so that she could participate in yoga and other exercise classes at her gym violated her rights under the ADA….Plaintiff presents no evidence that would render it reasonable for Defendant to modify her schedule. She admits that the particular yoga class she wished to attend was not needed to ameliorate her disability and that what her doctors recommended was that she be active generally. While other gyms, other classes or other forms of exercise may have been less convenient, an employer need not modify its job requirements for the convenience of its employees.

Plaintiff’s “shift change request appears to be no more than a personal preference

. . . and the ADA imposes no obligation on employers to accommodate personal preferences.”

 

Flynn v. McCabe & Mack LLP, 2018 WL 794631 *8.

 

The employer won here, with the Court acknowledging that employers do not need to provide employees with their first choice of reasonable accommodations unless there is no other reasonable accommodation available. However, an employer cannot reject the first request out of hand. Remember the employer and the employee must engage in an interactive dialogue as to what is a reasonable accommodation. If there is a simpler, less expensive or less disruptive accommodation available, then the employer may choose that option. But only after first engaging in the interactive dialogue process with the employee to discuss the various options.