If you were the judge: Employee couldn’t drive at night — can he get a schedule change?

by on November 19, 2010 · 0 Comment POSTED IN: HR Cafe
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Based on the facts in the scenario below, how do you think the court ruled on this employment law case?

“I’m sorry, but your request for a special winter schedule would just be too hard to arrange,” supervisor Gwen Jazelski told employee Mike Myerson. “You’ll have to work the same schedule as everybody else.”

Mike looked at Gwen in silence.

“You know about my eye condition. I can’t see to drive at night,” Mike finally said. “If I get off at 6 p.m., it’s dark and I’ll be at risk on the road. Why can’t you let me arrive a couple of hours early and leave by 4?”

“If I make exceptions for one person, I’ll have to make exceptions for everybody who asks,” Gwen said. “That would compromise the smooth operation of the business.”

Then and now
“Last winter, my supervisor had no trouble letting me work the modified schedule,” Mike protested. “And the work got done just fine.”

“Well, I’m your supervisor now, not him,” Gwen said.

“But I thought the company had to provide a reasonable accommodation,” Mike said.

“Sure, for the job itself. But we’re talking about your own time. The company isn’t responsible for helping with your commute.”

“Well, I’m not going to jeopardize my safety and other drivers by trying to drive at night,” Mike said.

“Suit yourself,” Gwen replied. “But if you leave early, we’ll have to take disciplinary action.”

Mike refused to work his scheduled shifts and was fired. He sued for disability discrimination. Did he win?

How the court ruled
Yes. Mike won a preliminary victory when an appeals court said his suit was strong enough to go to trial.

Supervisor Gwen made two key mistakes that hurt the company.

First, she tried to distinguish between the impact of Mike’s disability on his commute, and its impact on his performance at work. But the court said this was a distinction without a difference.

Modified schedules are a recognized form of reasonable accommodation for an employee’s disability. And the court said it doesn’t matter whether the modification is requested because of the disability’s effect on the employee’s work or on his getting to work – the employer still has to consider the accommodation.

Gwen’s second error: She didn’t start what federal disability law calls the “interactive process.” This is a conversation about a possible ADA accommodation that is supposed to start when an employee asks for an accommodation, or the employer becomes aware the person may need one. In Gwen’s case, she could have asked for more information about the limitations on Mike’s night vision, for example.

Typically, the choice of what accommodation – if any – to offer is the call of HR or higher management, not the line supervisor. But supervisors are responsible for not choking off the interactive process before it can get started.

Check out "ADA Accommodations: Supervisors and the Interactive Process" for FREE and arm your team with the knowledge they need to protect worker rights and avoid legal trouble.

Action steps
Here’s what a supervisor must do when an employee requests a disability accommodation:

  • acknowledge the conversation as a request for accommodation – even if the person didn’t use the word.
  • tell them you’ll pass the request to HR, and either HR or yourself will get back to them, and
  • document the conversation.

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