Reasonable Accommodations Don’t Just Start at the Office Door…

By Fiona W. Ong - Shawe Rosenthal LLP

July 6, 2022

When considering a request for reasonable accommodation under the Americans with Disabilities Act, many employers focus on what will enable an employee to perform the essential functions of their job. But the reasonable accommodation obligation is actually broader than that. As set forth in the EEOC’s regulations, employers must also provide reasonable accommodations that enable an employee with a disability “to enjoy equal benefits and privileges of employment as are enjoyed by its other similarly situated employees without disabilities.” And this encompasses certain activity outside the workplace – such as parking.

A recent case, Wilson v. Secretary of Veterans Affairs, highlights this point. An employee for the Department of Veterans Affairs (a federal agency that really should know better!) was a veteran who suffered from degenerative disc disease and partial paralysis in both feet. As a probationary employee, she was prohibited from using the on-site parking, but rather was required to park about a mile away and walk or take a shuttle to the office building. The shuttle, however, only ran for an hour in the morning and in the evening, and ran sporadically during those times. In addition, it could only hold about 25 individuals and had only 15 seats – clearly not enough for the approximately 80 probationary employees. (Ah, governmental efficiency!).

On six separate occasions over four months, the employee asked various management and administrative personnel for a parking accommodation, including her vocational rehab counselor, HR, and her supervisor. The first five times, she received no response. (!!!) The last time, her supervisor told her that HR “d[id] not see a connection [between parking privileges] and the essential function of you performing your job.” (!!!) Unsurprisingly, the employee filed a charge of discrimination with the Equal Employment Opportunity Commission – and within hours received a letter from her supervisor that acknowledged receipt of her request for accommodation and requested medical documentation. However, the letter also reiterated, ““parking is not a condition of employment, nor related to the essential functions of your position.” Understanding this to be a denial of her request, the employee did not submit any medical documentation. She was subsequently terminated, and filed suit under the Rehabilitation Act (the federal employee analog to the Americans with Disabilities Act).

This language jumped out at me because it reflected a common misunderstanding among many employers – that reasonable accommodations are only required to enable employees to perform their essential job functions. But, in another case, the U.S. Court of Appeals for the Fifth Circuit reversed the federal district court’s ruling that an accommodation must facilitate the performance of the essential functions of the job, noting that accommodations are also required to make the workplace “readily accessible” and “usable.” Thus, multiple federal courts as well as the EEOC have found that employers may need to make parking accommodations.

There were a couple of other lessons for employers from the Wilson case. The employer argued that the employee had not followed its process for requesting an accommodation because she had not submitted a written request to her supervisor or HR in the first place, as set forth in the policy. As the Court noted, however (with a certain snarky undertone), the policy acknowledged that requests may be either verbally or in writing, and also that they may be made on the employee’s behalf by some other representative (such as the vocational counselor – which happened here). So one lesson here is that employers need to understand their own policies.

The employer also argued that the employee had failed to engage in the interactive process because she did not submit the medical documentation when it was requested (following her sixth request). The Court treated this argument with the scorn it deserved as well, noting that the employer could certainly be found responsible for the breakdown of the interactive process in the first place. As the Court stated, “It took the VA four months to even attempt to initiate the interactive process, despite being repeatedly placed on notice of Wilson’s disability and her request.” And the Court went on to observe that the supervisor’s response to the employee’s sixth request could reasonably be viewed as a denial of the request. This drives the point home that employers need to respond promptly to requests for accommodations – and to ensure that the communications are thoughtfully drafted.

So employers, don’t shut the door on those reasonable accommodation discussions!

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