Andy, the Director of Human Resources at one of my clients, called me last week. He was pretty distraught.
One of his employees, we’ll call him Tom, has been battling lung cancer, and he recently learned that the cancer has advanced to stage four. It’s clear that his days are numbered.
Tom has been a diligent, hard-working employee for several years as part of the employer’s facilities team, and in this role, he is responsible for setting up and breaking down events held by the employer. Based on Andy’s observations, Tom can no longer perform the essential functions of his job.
In fact, it’s obvious Tom will never be able to perform them.
I quickly sensed that Andy and I were heading toward that part of the conversation when my client invariably asks the question: Do we have an obligation to accommodate Tom’s inability to perform the job and for how long, given that he has a terminal illness?
As if he precisely knew what was swirling in my head, Andy quickly cut off my thought. And he was blunt with me:
“Jeff, we don’t want to terminate Tom. And we don’t want to put him on leave because he wants to be productive and work. I will make work up for him to do until he feels he can’t work anymore.
But then Andy shared a legitimate concern:
In doing this for him, though, I don’t want to be required to provide light duty or “make-up” work for just any employee who can’t perform their job. If I do this for Tom, will the law require me to do the same for other employees in the future?
Benevolent Employers Are Not Penalized under the Law
Put Andy’s question another way, does his good deed set a precedent for every accommodation request made by his employees in the future?
Thankfully, it does not. Courts have consistently declined to hold to a higher standard a “benevolent” employer that goes above and beyond the call of duty. A good example is Myers v. Hose, in which a city bus driver was ultimately terminated because he was unable to perform his job duties due to significant restrictions. In his ADA claim, the former employee argued that the fact that other employees were provided accommodations when he was not is evidence of discrimination.
Not so fast, said the court. In rejecting this ADA claim, the court clearly did not want to punish a good deed:
. . . the fact that certain accommodations may have been offered . . . to some employees as a matter of good faith does not mean that they must be extended to Myers. Such a regime would discourage employers from treating disabled employees in a spirit that exceeds the mandates of federal law. If an employer undertook extraordinary treatment in one case, the same level of accommodation would be legally required of it in all subsequent cases; in other words, a good deed would effectively ratchet up liability, and thus not go unpunished.
Taking it further, the court cautioned that “discouraging discretionary accommodations would undermine Congress’ stated purpose of eradicating discrimination against disabled persons.” (In any event, these claims should be dismissed for the additional reason that the plaintiff cannot show that any non-disabled person was treated better than he was treated.)
Additional Insights for Employers
Andy breathed easier after I shared this perspective, and it gave him the flexibility he needed to care for his terminally-ill employee.
What else should employers keep in mind in these situations?
1. Be Creative. Are there other accommodations that should be considered for an employee in these situations? Think about:
- Modifying job duties
- Offering flexible working hours, such as starting late and ending early, and giving extra breaks
- Altering workplace facilities or equipment
- Providing parking or transportation assistance
- Permitting time off for medical appointments
- Changing performance targets to consider the effect of any sick leave or treatment side effects, such as fatigue
- Changing where the employee works — for example, moving the employee to a ground floor office if he cannot handle climbing stairs
- Providing computer equipment, such as voice-activated software, if the employee can’t type
2. Be Compassionate. We will not be remembered for how much we know or for our great victories, but by how we made someone feel. Ten years ago this weekend, I lost my father after a tough battle with cancer. As he dealt with the illness in his final months, his boss allowed him to work when he could make it, gave him leave when he needed it, and interacted with him with compassion and empathy.
Some employers can’t afford to provide make-up work or hold a position open for long. To those who can, the human touch can make a difference. And it’s perfectly legal.
Jeff Nowak is a Partner at the law firm of Littler Mendelson and has been named as one of Illinois’ top “40 Attorneys Under 40” to watch in 2012. Jeff is widely recognized as one of the nation’s foremost FMLA and ADA experts, regularly counseling clients on compliance with FMLA and ADA regulations, conducting FMLA/ADA audits and training, and successfully litigating FMLA and ADA lawsuits. Jeff is the author of the highly regarded FMLA Insights blog, which has been selected for four consecutive years by the ABA Journal as one of the top 100 legal blogs (2011-2017) and was also voted the No. 2 Labor and Employment blog by LexisNexis.
The above article first appeared in FMLA Insights and is reprinted with Jeff’s permission.