Can I fire an employee once they have requested an ADA accommodation?

Question:

We have an employee who has not been meeting performance expectations for several months, two of which are attendance and work location. They were hired for a full time 40 hrs/week salaried exempt position working onsite at our facility in addition to field work. After several months of working from home and only averaging 30 hours/week, she notified her supervisor that she has severe anxiety and medical issues requiring a limited/flexible schedule and remote work. She has told another employee tips on how to push working from home. We are a small company without the ability to hire additional support on top of her salary. We were preparing to let her go as we feel we are unable to provide a reasonable accommodation that is within her specified job description and one that does not cause a hardship to our company. She has now called her supervisor saying she will not be in because she is feeling suicidal. We encouraged her to seek help, which she said she was already speaking with her therapist. We don’t want to be the straw that broke the camel’s back if she is truly suicidal but cannot continue to operate this way regarding her position. We feel that if we move forward with dismissal, and she is truly suicidal, that it may push her past the edge. We also believe that she may be playing us. Can we legally dismiss her after having requested an accommodation, based on not meeting position requirements (full time, onsite) and causing a hardship to the company? What is the best way to proceed? Thank you!

Answer:

Under the Americans with Disabilities Act (“ADA”), a reasonable accommodation is an adjustment to a job that allows a person with a disability to enjoy equal employment opportunities as long as the accommodation does not create an undue hardship upon the employer.  Although remote work or working from home (“WFH”) saw a dramatic increase during the pandemic, now, in order for an employee with a disability to continue to telework as a reasonable accommodation, the employee must show they can perform the essential functions of the job remotely such that an accommodation does not pose an undue hardship on the employer.

According to the U.S. Equal Employment Opportunity Commission (“EEOC”), an employer does not have to “automatically” continue an employee’s telework accommodation and is entitled to understand the disability-related limitation in its determination. That understanding, in large, should be developed during the interactive process where the employer and employee engage in a confidential interactive meeting to improve the employer’s understanding of how the employee’s disability impedes them from carrying out a part of their job, and, when the employer may ask the employee to provide medical documentation pertaining to the employee’s request for an accommodation.

An important step that should be discussed during the interactive process is a breakdown of the employee’s functions, particularly the ones that are deemed essential.  Above, you noted that two of the employee’s essential functions relate to “attendance and work location.”  However, it’s important to remember that a function may not be essential just because the employer deems it so.

For example, one case that may shed some clarity as to whether in-person attendance is such an essential function is Hostettler v. College of Wooster, 895 F.3d 844 (6th Cir. 2018), where the Sixth Circuit determined that “full-time presence at work is not an essential function of a job simply because an employer says that it is.”  Furthermore, employers will have a hard time arguing that a telework accommodation creates an undue hardship or prevents the employee from performing their essential functions when the employee successfully implemented telework during the pandemic. See Peeples v. Clinical Support Options, Inc., 487 F.Supp.3d 56, 65 (D.  Mass. 2020) (requiring the employer to allow plaintiff to continue teleworking as a reasonable accommodation for asthma during the COVID-19 pandemic where the plaintiff proved that he performed the same duties on-site and at home).

However, that is about as far as I  can take this guidance.  The interactive process is extremely fact-specific and is designed to be flexible. Thus, at this point, it sounds like you need to take a close look at the employee’s job functions (especially how they were addressed during the pandemic and how they are handled by other employees in similar positions).  After that, it’s probably a good idea to meet with the employee to further the interactive process.

During the interactive process, you, as the employer, need to discuss the employee’s request so that you may better understand why the disability might necessitate the employee working at home. During the process, the employee must explain what limitations of their disability make it difficult to do the job in the workplace or the field (as required), and how the job could still be performed from the employee’s home.  Additionally, you may request information about the individual’s medical condition (including reasonable documentation) if it is unclear whether it is a “disability” as defined by the ADA. The employer and employee may wish to discuss other types of accommodations that would allow the person to remain full-time in the workplace. However, in some situations, working at home may be the only effective option for an employee with a disability.  Similarly, there are certainly situations where a reduced schedule or a flexible schedule have been found to be reasonable accommodations.

In any case, if you ultimately determine that continuing to allow this employee to WFH with a reduced schedule creates an undue hardship, then you may not need to provide the accommodations.  However, keep in mind that generalized conclusions will not suffice to support a claim of undue hardship. Instead, undue hardship must be based on an individualized assessment of current circumstances that show that a specific reasonable accommodation would cause significant difficulty or expense. Further, if an employer determines that one particular reasonable accommodation will cause undue hardship, but a second type of reasonable accommodation will be effective and will not cause an undue hardship, then the employer must provide the second accommodation.

So if that is ultimately your decision, then it’s highly suggested to carefully document your decision-making process. Take time to document the reasoning behind the decision and the factors that create the undue burden. Unfortunately, the details of those decisions depend heavily on the workplace, accommodations previously provided to other employees, and the specific employee in question, none of which can be fully assessed in this format.