EdLawConnect Blog

Whether the ability to work a certain number of hours in a shift is an “essential function” of a position is a factual determination that must be made on a case-by-case basis. In a recent decision, a federal district court found an employee with a disability presented sufficient evidence to create a question for a jury as to whether the employer could have shortened her shift as a reasonable accommodation.

The case involved a part-time hospital nurse who had undergone several procedures to treat a brain tumor. For several years, the nurse worked 8-hour shifts. Over time, however, the hospital transitioned nurses’ schedules from 8-hour shifts to 12-hour shifts. The parties disputed when this transition occurred and whether all 8-hour shifts were eliminated.

The nurse requested to keep her regular part-time schedule of 8-hour daytime shifts as an accommodation of her disability. Her doctor provided a note indicating the nurse was limited to working 8-hour shifts, though the note did not specify she required daytime shifts. The hospital denied the requested accommodation on the basis its other nurses would be unable to operate effectively during the 4 hours a day when the employee could not work, thus compromising patient safety. The hospital asserted the new 12-hour shift policy was an essential function.

The nurse was eventually terminated and filed a claim under the Americans with Disabilities Act (ADA) alleging denial of an accommodation and discrimination on the basis of her disability.  The court found sufficient evidence to create a question for a jury as to whether the hospital could make an exception to the 12-hour shift policy as an accommodation for the nurse. Because this factual question remained, the hospital’s motion for summary judgment was denied. This decision is instructive for employers when processing employee requests for accommodations, with these issues warranting particular consideration:

• Failure to engage in the interactive process in good faith: The hospital insisted it made every attempt to accommodate the nurse by tailoring accommodations to the limitations set forth in the doctor’s note, which limited her shifts to 8 hours, but did not limit those shifts to daytime. The court reasoned that by the time the hospital received the doctor’s note, it already knew from the nurse’s statements that she needed daytime shifts. The hospital should have resolved any uncertainty as to the nurse’s limitations by requesting further information from the doctor.
• Lesson #1: The interactive process is a legal requirement. Before denying an accommodation request, employers should make every effort to engage in a successful interactive process. These efforts will create a thorough record if the requested accommodation is ultimately denied and will avoid legal liability for failing to engage in the interactive process.
• Failure to consider other options as an accommodation: The hospital claimed allowing the nurse to work an 8-hour shift would cause an undue hardship, because it would lack proper team coverage for patients during the 4 hours the employee could not work. The court found the nurse presented sufficient evidence from which a jury could find the other nurses could operate effectively as a team at all times, with a combination of 4-, 8-, and 12-hour shifts, just as the nurses had done in prior years. Further, even though the hospital argued it had eliminated 8-hour shifts, such shifts remained on the nursing schedule.
• Lesson #2: An employer is not required to accept an employee’s requested accommodation, even if it would be effective, if the employer can provide a different accommodation that meets the employee’s needs. However, if an employer denies an employee’s requested accommodation and does not identify another option that meets the employee’s needs, the employer should be prepared to justify its denial of the accommodation with a compelling reason. An accommodation does not create an “undue hardship” simply because it is unusual, would require some effort or expense, or would expand or revive a practice the employer hoped to eliminate.
• Failure to make an exception to a uniformly applied policy: The hospital emphasized that the transition to 12-hour shifts was applied uniformly and fairly among nurses. However, the court found the fact that the policy was applied uniformly was not dispositive of whether disability discrimination occurred.
• Lesson #3: Equal protection should not be confused with disability discrimination. The nature of an accommodation is treating a disabled employee differently, to accommodate the disability. Employers often must make exceptions to otherwise applicable policies for a disabled employee who needs an accommodation.