Sometimes, the blogging gods lob me a softball. And when that happens, I know what to do.
The Americans with Disabilities Act requires an employer to accommodate an individual with a disability where, absent undue hardship to the employer, doing so will enable that person to perform the essential functions of the job.
But, is an employer required to provide the reasonable accommodation that the individual wants?
The employer may choose among reasonable accommodations as long as the chosen accommodation is effective….If there are two possible reasonable accommodations, and one costs more or is more burdensome than the other, the employer may choose the less expensive or burdensome accommodation as long as it is effective (i.e., it would remove a workplace barrier, thereby providing the individual with an equal opportunity to apply for a position, to perform the essential functions of a position, or to gain equal access to a benefit or privilege of employment)….If more than one accommodation is effective, “the preference of the individual with a disability should be given primary consideration. However, the employer providing the accommodation has the ultimate discretion to choose between effective accommodations.”
Now, remember that as I outline some of the facts from Flynn v. McCabe & Mack LLP (opinion here). The plaintiff in McCabe treated for cancer. As part of her recovery, the plaintiff exercised a lot. She also went to yoga classes. Indeed, at one point the plaintiff asked her employer to adjust her work schedule. According to the court’s opinion, “[e]vidently Plaintiff’s preferred yoga instructor’s class had changed to 4:30 p.m., and if she did not attend that class, she would have had to adjust her personal schedule to attend a 7:30 class or, presumably, find a different facility.”
(Anecdotally, it doesn’t bode well for a litigant when the court prefaces that party’s version of the facts with “evidently.”)
The plaintiff’s preference for a particular yoga class notwithstanding, the court noted that she no doctor prescribed her yoga and there was nothing to indicate that it was medically necessary for her to take yoga. Plus, at her deposition, the plaintiff “testified that it was a personal request so that she could go to a particular gym that was convenient to the office and reasonably priced. She further testified that she did not attend yoga classes on the weekends.” Ultimately, the defendants denied the plaintiff’s request to attend her first choice of yoga classes.
Can you see where this one is going?
Let’s see if we’re right. Talk to us, Judge Cathy Seibel:
Plaintiff alleges that the denial of her request to modify her work hours so that she could participate in yoga and other exercise classes at her gym violated her rights under the ADA….Plaintiff presents no evidence that would render it reasonable for Defendant to modify her schedule. She admits that the particular yoga class she wished to attend was not needed to ameliorate her disability and that what her doctors recommended was that she be active generally. While other gyms, other classes or other forms of exercise may have been less convenient, an employer need not modify its job requirements for the convenience of its employees. Plaintiff’s “shift change request appears to be no more than a personal preference . . . and the ADA imposes no obligation on employers to accommodate personal preferences.”
Employers do not need to provide employees with their first choice of reasonable accommodations unless there is no other reasonable accommodation available. That said, I often recommend to employers to provide employees with their first choice of reasonable accommodations, unless there is a compelling reason not to do so. Consider this. How many employees wake up in the morning and say to themselves, “Yay! Today is the day that I get to go to HR to discuss my disability and ask for help doing my job.” Therefore, when HR engages in that interactive dialogue, why put the employee through any more anguish. Rather, consider just doing the employee a solid and just say yes.