An Employer Is Not Required to Continue an Unreasonable Accommodation.

According to the U.S. Court of Appeals for the Eleventh Circuit, “just because an employer has, in the past, done more than required to accommodate an employee who cannot fulfill all the requirements of his job does not mean that the employer must continue to do so.”

In Hartwell v. Spencer, a Navy firefighter was chronically late. Under a 2008 Memorandum of Agreement, firefighters were allowed to exchange up to 59 minutes at the beginning or end of a shift, and the firefighter in question was thus usually able to find someone to cover for him. In 2011, however, such time swaps were no longer allowed in order to comply with strict Navy “business rules” on timekeeping and overtime. In addition, there was a change in supervisor, who issued progressive discipline to the firefighter for his tardiness. The firefighter then notified the supervisor that his tardiness was due to drowsiness caused by medications he took for several mental health conditions, and he requested an accommodation of being allowed to use sick leave for his tardiness and to reinstate the ability to informally exchange time with others. This was denied and he was terminated.

The Eleventh Circuit found that punctuality was an essential function of the firefighter’s job. The employer established the importance of having a full staff ready to respond to emergencies, and that when a firefighter is late, someone must stay longer to cover, which was a safety concern due to fatigue and also increased overtime costs. Thus, the firefighter’s requested accommodation – to continue to allow him to be late – would not have allowed him to perform the essential function of punctuality and was therefore not reasonable.

The Eleventh Circuit also rejected the firefighter’s argument that the accommodation was reasonable because the employer had permitted it for years without adverse consequences. The Eleventh Circuit noted that, “prior accommodations do not make an accommodation reasonable.” As quoted above, the Eleventh Circuit further noted that employers are not bound to continue unreasonable accommodations. Thus, the good news for employers is that they will not be penalized for doing more than they should.