Can A Schedule Change Be An ADA Accommodation?

Best Ohio Disability Discrimination Attorney Answer: I am a full-time employee; can I work less than full time hours as a reasonable accommodation for my disability under the Americans with Disability Act? Can my boss say that my full-time presence at the workplace an “essential job function” in order to block me from a work at home accommodation that I need because I’m disabled? Can I temporarily or permanently telecommute from home as a reasonable accommodation?

At The Spitz Law Firm, LLC, our employment lawyers continue to work every day to help hard working employees that been refused disability accommodations by their employers and former employees who have been wrongfully fired because of disability discrimination in the workplace.

As our employment discrimination lawyers have blogged before, all employees are protected under Americans with Disabilities Act (“ADA”) and Ohio’s R.C. § 4112.02(A) from being discriminated against by their employers on the basis of their actual or perceived disability, including being fired, being paid less, being demoted, being denied promotion, and being treated differently than any other similarly situated non-disabled employee. (See My Job Is Discriminates Against Me Because I’m Disabled!; Top Disability Discrimination Lawyer: Is It Disability Discrimination If My Job Will Not Accommodate My Anti-Social Disorder?; and Is It Wrongful Termination To Fire Disabled Workers?). These laws also prohibit employers from making pre-employment, disability-related inquiries of job applicants. Additionally, the ADA requires employers to provide reasonable accommodations to employees who, either with or without such accommodations, are qualified to “perform the essential functions of the employment position.” (See How Do I Get A Disability Accommodation For My Job?; Can A Service Dog Be A Disability Accommodation At My Job?; and Does My Job Have To Accommodate My Paralysis?). Lastly, your boss, manager, or supervisor cannot retaliate against you for requesting a reasonable accommodation to help you perform the essential functions of your job.

What is an essential function at your job? An essential job function can be any activity that is crucial to the performance of a particular job. For example, an essential job function for a commercial pilot would be flying a plane. While a pilot may have other job duties such as greeting passengers as they disembark, this is secondary to the pilot’s job of transporting passengers from one destination to another. Now, what if an employee is hired to work to be a full-time employee? Would this make the employees full time presence at the workplace an essential job function? Courts have held that this is not always the case.

The United States Sixth Circuit Court of Appeal addressed whether full time presence at the workplace is always an essential job function or workers in the case of Hostettler v. College of Wooster. Regular readers of our employment lawyers’ blog may recognize that our disability discrimination attorneys previously blogged about this case with regard to the interactive process. (See Do I Have A Disability Discrimination Case?). However, it is worth circling back to this case to address the work at home accommodation issues.

To reset the facts, in the summer of 2013, the College of Wooster, which is located in between Cleveland and Columbus, Ohio, hired Heidi Hostettler to work as a Human Resources Generalist. Hostettler was four months pregnant at the time that she was interviewed for and accepted the HR position. Hostettler was open about her pregnancy throughout the hiring practice. To their credit during negotiations, when Hostettler and Wooster’s HR team discussed maternity leave, Wooster told Hostettler that they would be willing to accommodate her pregnancy. (Side note as our employment attorneys have blogged before not all employers are so accommodating for pregnant employees. See How Do I Get Light Duty At Work While I’m Pregnant?, Do I have to tell a potential job I’m pregnant?, and What Can I Do If I Was Fired Today For Being Pregnant? I Need The Best Pregnancy Discrimination Attorney And Top FMLA Lawyer In Ohio!).

For the first months of her employment, Hostettler was a model employee and it seemed that Wooster could not be happier with her employment. In her position as a HR Generalist, Hostettler helped managers with employee relations, worked on performance-improvement plans; recruited new hires to work at the college; and designed training programs, among other things. Hostettler worked full-time, normally from 8:00 a.m. to 5:00 p.m., but sometimes she stayed as late as 6:00 p.m. Hostettler would even go above and beyond her duties, sometimes using her personal time on nights and weekends to organize trainings or answer emails and phone calls. Although Hostettler was working more than 40 hours per week, she testified that the job required “probably thirty, thirty-five” hours a week, and that in the extra time she spent at work was spent working on projects above and beyond her job duties.

Hostettler began her maternity leave in of February 2014 and used her full 12 weeks of protected Family and Medical Leave Act (“FMLA”) leave. Hostettler was scheduled to return to work at the end of April. However, as the end of her leave approached, Hostettler experienced severe postpartum depression and separation anxiety. Hostettler’s doctor testified that “she had one of the worst cases of separation anxiety” that he had ever seen. Hostettler’s doctor went on to say that Hostettler did not seem like herself and that she cried during almost every doctor’s appointment.

Hostettler’s doctor believed that it would be a bad idea for Hostettler to return to work so soon and testified that he believed that “it was medically necessary that Hostettler could work a reduced schedule.” Hostettler’s doctor insisted that she return to work on a part-time basis for the “foreseeable future.” Her doctor believed that that Hostettler would be able to return to work on a full-time basis in “a month or two,” because the symptoms of postpartum depression and separation anxiety usually do not last longer than six months.

Hostettler’s doctor provided documentation to Wooster informing them that Hostettler needed to work a reduced schedule of three days a week, but that Hostettler did not need any accommodation in her normal work activities. In late May, when Hostettler returned to work, her boss asked that instead of working two or three full days a week, Hostettler work five half days a week. Both Hostettler and her doctor agreed that five half days a week would be a reasonable accommodation. Wooster told Hostettler she could work a part-time schedule until June 30, at which time Wooster told Hostettler that she would have to submit an updated certification from her doctor.

While Hostettler still suffered from depression and would have anxiety attacks if she had to stay at work past her modified leave time, she still managed to complete all of her assigned tasks. In fact, one of Hostettler’s coworkers testified that during Hostettler’s modified schedule, she was not aware of any “employee relations, recruiting, or training issues, programs, or assignments that Ms. Hostettler failed to complete.” Hostettler was able to complete whatever work she was not able to get to during her modified work hours at home.

Towards the end of June 2014, the trouble really started. After Hostettler submitted her request to continue her modified schedule, she had a series of meetings with her manager. First, Hostettler was given her performance review, where she received positive feedback from her manager and there was no mention about Hostettler returning to full-time. In subsequent meetings, Hostettler spoke to her manager about possibly adjusting her schedule to work until 2:00 or 3:00 p.m. However, Hostettler’s manager was uninterested in what Hostettler had to say and Hostettler characterized it as a “one-way conversation.” Around this time Hostettler submitted another note from her doctor informing Wooster that she would need to extend the duration of her modified schedule. The next day, Hostettler was fired.

In her termination letter Hostettler’s manager informed her that because her updated medical certification required her to work half-time, she was “unable to return to [her] assigned position of HR Generalist in a full-time capacity” and was being terminated. Suspiciously, Wooster did not hire a replacement for Wooster until October 2014.

Hostettler sued Wooster, claiming violations of the Americans with Disabilities Act (“ADA”), the FMLA, Title VII of the Civil Rights Act of 1964, and corresponding Ohio laws under R.C. § 4112.02(A). The district court granted summary judgment to Wooster, buying Wooster’s argument that full-time work was an essential function of the position of HR Generalist and because Hostettler could not satisfy that essential function or propose a reasonable accommodation that would allow her to meet the essential function, she was not a qualified individual under the ADA. Hostettler than appealed to the sixth circuit court of appeals, which in July of 2018 reversed the lower court’s decision.

The court of appeals addressed the central issue of whether it was an essential job function for the HR generalist position to have full-time, in-office attendance. The court found that the evidence on this question was unclear. Hostettler and her colleague had testified that she completed all of her tasks. On the other hand, the college’s witness could not identify any specific work that Hostettler failed to complete. Most importantly the court held that full-time attendance by itself cannot be an essential job function saying: “An employer must tie time-and-presence requirements to some other job requirement.”

The court went on to say:

“In sum, full-time presence at work is not an essential function of a job simply because an employer says that it is. If it were, otherwise, employers could refuse any accommodation that left an employee at work for fewer than 40 hours per week. That could mean denying leave for doctor’s appointments, dialysis, therapy, or anything else that requires time away from work. Aside from being antithetical to the purpose of the ADA, it also would it also would allow employers to negate the regulation that reasonable accommodations include leave or telework. 29 C.F.R. § 1630.2(o)(2)(ii).”

The appeals court reversed the lower court’s ruling for summary judgment and remanded the case to district court. The main takeaway you should understand from the Hollister case is that just because your employer says it cannot accommodate you because of essential job functions this is not always the case.

An employer has a duty to accommodate a disabled employee in a way that will allow the employee to substantially perform the duties of their job, without causing an undue burden on the employer. If an employee requests a schedule modification as an accommodation, an employer must consider if the requested accommodation is reasonable or if it eliminates an essential job function. If the requested accommodation does not eliminate an essential job function even if it alters an employee’s schedule from full time to part time than an employer is legally obligated to accommodate the employee.

If you have requested an accommodation for your disability and your employer has denied you, you need to call the right attorney. Having to live with a disability is difficult enough without worrying about the effect it may have on your job. If you are disabled or your employer perceives you as being disabled; and you have been fired, wrongfully terminated, discriminated against, demoted, wrongfully disciplined, denied wages, or even think that you might need a disability discrimination lawyer, then call the right attorney to schedule a free and confidential consultation. Call our Cleveland attorneys at (216) 291-4744. Call our Cincinnati attorneys at (513) 818-3688. Call our Columbus attorneys at (614) 335-4685. Call our Call our Toledo attorneys at (419) 960-5926.

Disclaimer:

This employment law website is an advertisement. The materials available at the top of this page and on this employment law website are for informational purposes only and not for the purpose of providing legal advice. If you are still asking, “how do I request an accommodation to do my job for my disability?”, “how do I prove that I am disabled under the ADA?”, “what should I do if I was wrongfully fired yesterday because my boss thinks I’m disabled?” or “can the owner of my company fire me for asking for help with my job because of a disability”, it would be best for you to contact an Ohio attorney to obtain advice with respect to disability discrimination questions or any particular employment law issue. Use and access to this employment law website or any of the links contained within the site do not create an attorney-client relationship. The legal opinions expressed at or through this site are the opinions of the individual lawyer and may not reflect the opinions of The Spitz Law Firm, attorney, Brian Spitz or any individual attorney.

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