Allowing an Employee to Work a Shorter Shift May Be a Reasonable Accommodation

A recent federal district court decision is a good reminder that an employer needs to explore all options before denying an accommodation request, including whether it can go back to an employment practice it has changed and applied to all similarly situated employees. The recent case involved a nurse at a hospital with a brain tumor. For years, she worked eight-hour shifts, which were consistent with her medical needs. Over a period of time, according to the hospital but disputed by the employee, the hospital changed its shift practices and required all affected employees to work 12-hour shifts.

The nurse submitted a note from her doctor saying she needed to continue to work eight-hour shifts. The hospital denied the request on the grounds that it could not make an exception for this employee because there would not be proper team coverage for the hospital’s patients for the four hours of each shift that this employee could not work. The hospital contended that the new 12-hour shift practice was, therefore, an essential function. Sounds reasonable, right? Not so fast.

The employee was eventually terminated and filed an Americans with Disabilities Act (ADA) denial of accommodation claim. The court did not outright reject the employer’s argument. Instead, it found that the nurse had presented enough evidence to create a question as to whether the hospital could make an exception to the shift requirement as an accommodation for her, including that a combination of four-hour, eight-hour, and 12-hour shifts had worked in the past. The court, as a result, denied the employer’s motion for summary judgment and said the issue was for a jury to decide.

This case provides several important lessons.

• The fact that a policy is applied to all other employees does not mean an employer may not have to make an exception for a disabled employee who needs an accommodation. That is often the essence of making an accommodation: Doing something you do not do for other employees because of the disabled employee’s particular medical needs.
• If the employer is looking at denying the employee’s requested accommodation and does not identify another option that meets the employee’s needs (remember the employer does not have to accept the employee’s requested accommodation, even if it would work, if the employer can provide a different accommodation that effectively solves the medical issue), the employer should be as comfortable as it can that the reason for the denial of the accommodation request would likely be compelling enough to get summary judgment granted and avoid a jury trial.
• There was also an issue in this case as to whether the employer fully engaged in the interactive process required by the ADA. This potential failure to engage in the interactive process may have affected the court’s decision to deny summary judgment. So employers should keep in mind that if it is looking like the accommodation request may be denied, the employer should err on overdoing the interactive process. This will not only help the employer make sure it is not missing any facts as to why an accommodation request cannot be granted – either the one requested by the employee or another option – it may also help get over the summary judgment hurdle. As we all know, keeping these issues from juries will be less expensive and less risky as to the outcome.