Very Helpful Guidance on the ADA from the Fourth Circuit!
The U.S. Court of Appeals for the 4th Circuit issued an opinion that provided much useful guidance on an employer’s obligations under the Americans with Disabilities Act, including reasonable accommodations, discrimination, and retaliation.
What the ADA Requires: The ADA prohibits employers from discriminating against qualified individuals based on their disability, which includes the failure to provide a reasonable accommodation that would enable the individual to perform their essential job functions. The law also prohibits employers from retaliating against any individual for exercising rights under the law, opposing any acts illegal under the ADA, or because of any complaint of an ADA violation.
In order to sustain a claim for failure to accommodate, an employee must show that (1) they are disabled, (2) the employer had notice of the disability, (3) they could perform the essential functions of their job with a reasonable accommodation, and (4) the employer refused to make such accommodation.
As for a discriminatory discharge claim, an employee must show that (1) they are a qualified individual with a disability, (2) they were discharged, (3) they were meeting their employer’s legitimate expectations at the time of the discharge, and (4) the circumstances of the discharge raise a reasonable inference of unlawful discrimination.
With regard to a retaliation claim, the employee must show that (1) they engaged in a protected activity under the ADA, (2) they subsequently suffered an adverse employment action, and (3) there is a causal link between the two. In many cases, a temporal link – meaning a short period of time between the protected action and the alleged retaliatory action – can be sufficient to establish a causal link.
As to all of these claims, once the employee makes the required showing, the burden then shifts to the employer to establish a legitimate, non-discriminatory reason for its actions. And if so, then the burden shifts back to the employee to demonstrate that the asserted reason is just a pretext for the illegal discrimination or retaliation.
Background of the Case: In Tartaro-McGowan v. Inova Home Health, LLC, the employee spent 17 years as a field nurse for an Inova home health agency, providing direct care to patients. After the employee developed chronic arthritis in her knees that limited her ability to perform tasks requiring squatting, kneeling, bending or other stress on her knees, she requested and was transitioned to a supervisory clinical manager position, which she continued to hold after her employer entered into a joint venture with another company, creating a new entity. In that role, she supervised the performance of direct care by others on “very infrequent” field visits.
Then the COVID-19 pandemic occurred, and there was a well-known critical shortage of healthcare staff. The employer informed all clinical employees, including clinical managers, that they would be required to perform direct patient care field visits until the company could hire additional staff. The employee requested an accommodation to excuse her from any direct patient care field visits, supported by a doctor’s letter. The employer stated that it could not accommodate that request, but would allow her to screen patients/visits so she could select field visits that would avoid the need to bend her knees, as well as to avoid back-to-back visits.
The employee then submitted another doctor’s letter, stating that the proposed accommodation was not reasonable because a patient’s needs could not truly be determined until she arrived at the home. The employer reiterated its proposed accommodation, noting that the employee’s extensive field experience would allow her to identify patients (such as those who are mobile) that would suit her limitations, and asked what other accommodation she was requesting. The employee responded that she was concerned about the layout of the patient’s home and any unexpected treatment reactions. The employer again repeated its proposed accommodation, and the employee again refused. She was then terminated after she failed to make any field visits. Of note, another clinical staff member was also terminated for refusing to conduct any direct patient care field visits.
Unsurprisingly, the employee sued. The federal district court rejected all her claims as a matter of law, based on the undisputed facts. She then appealed to the 4th Circuit.
The Court’s Decision. The 4th Circuit affirmed the federal district court’s decision on all claims. As to the failure to accommodate claim, the 4th Circuit found that no reasonable jury could find that the employer denied the employee a reasonable accommodation. Under the specific circumstances of the case, which included the COVID-related staffing shortages, and the fact that, where there are different reasonable accommodation options, employers may choose the accommodation, the 4th Circuit found that the denial of the employee’s request was not unreasonable. Moreover, the accommodation offered by the employer was reasonable, as the employee was able to research the layout of any patient’s home beforehand, as well as request additional insight from other clinicians, and therefore select only appropriate assignments, which could be spaced out to avoid potential stress to her knees. Any argument that there could be an unexpected event was only hypothetical and would apply to even fully-able nurses.
As to the discrimination claim, the 4th Circuit held that there was no dispute that the employee was not fulfilling the employer’s legitimate expectations. Nor were there circumstances raising an inference of unlawful discrimination, since the employer offered a reasonable accommodation that she refused. Moreover, she was treated similarly to the other employee who was also terminated for refusing field visits.
And for the retaliation claim, despite the relatively short time period between the employee’s request for accommodation and her termination, the causal link was broken by the employer’s legitimate non-discriminatory reason – “her failure to perform any direct patient care field visits, even with a reasonable accommodation, despite multiple warnings.” The employee offered no evidence that the reason was pretext for retaliation.
Guidance for Employers. In arriving at these conclusions, the 4th Circuit made a number of very interesting and helpful statements related to an employer’s obligations under the ADA, including the following:
- What is a reasonable accommodation is not a theoretical question, but one depending on the particular circumstances of the case.
- There may be “many possible solutions” for what constitutes a reasonable accommodation in a particular case. If so, “the employer, exercising sound judgment, possesses the ultimate discretion over these alternatives.” The employer’s choice must only be reasonable, “not perfect” – and “not even a well-intentioned court may substitute its own judgment for the employer’s choice.”
- A reasonable accommodation may – but does not necessarily – require the elimination of a non-essential, marginal function. It depends on the circumstances.
- “An accommodation is not ineffective simply because it is available to other employees regardless of disability status.” In other words, an accommodation need not be specially created for the employee, if there are existing mechanisms that would allow them to perform their essential job functions.
- “While [an employee]’s doctor’s opinion regarding an accommodation should be considered by the employer, the ADA doesn’t bind the employer to that opinion if the proposed accommodation is otherwise reasonable under the circumstances.” Thus, the doctor’s opinion is not the final word.
- “The ADA requires reasonableness, not perfection. Reasonableness does not demand that an accommodation have an airtight solution to every contingency conceivable. Its dictates are tethered to the practical realities of each case, not boundless hypotheticals.”
- An employee should give the employer’s proposed reasonable accommodation a chance, rather than simply rejecting it. Then if in practice the accommodation proves to be “impracticable,” the employee may seek an alternative accommodation at that time. Without doing so, any argument that the proffered accommodation is unreasonable is “only vague conjecture,” which is not sufficient under the ADA to support a violation.