By John M. (Jack) Collins, General Counsel, Massachusetts Chiefs of Police Association, Grafton, Massachusetts
s officers and civilian employees become more aware of their rights under the Americans with Disabilities Act (ADA), they are asking chiefs for accommodations to help them do their jobs. Unless chiefs are prepared to deal with such requests, they risk violating the ADA and exposing their municipalities to significant damages.
Under the ADA, public employers must provide reasonable accommodations to the known physical and mental limitations of qualified applicants and current employees with disabilities. This includes all employees—even temporary, part-time, and probationary officers.
It is only the essential functions of their job that the disabled employee can be required to perform. If the disability prevents performance of marginal functions, these functions should be reallocated or eliminated. Reasonable accommodations are broadly defined as any change in usual workplace procedures, be it a physical or a policy change, that allows a disabled individual to enjoy equal employment opportunities. Accommodations range from flexible work schedules and job swapping to raising a desk and installing a ramp. Only reasonable accommodations that do not pose an undue hardship are required.
A police department is required to provide reasonable accommodations unless it can prove that the accommodation would impose an undue hardship on its operations. An undue hardship can be financial or administrative—for example, it would be too costly or would fundamentally alter the way the police department’s business is normally done. The employer has the burden of proving an accommodation would impose an undue hardship. (Note: There is not an agreement as to whether a cost-benefit analysis is appropriate to determine undue hardship, and courts and the Equal Employment Opportunity Commission [EEOC] are not always on the same page; check with your municipal counsel.)
Just when many chiefs thought they understood the most relevant parts of the ADA, Congress completed a major overhaul in 2008, with many changes coming in 2009 and even as late as 2011 when the EEOC finalized its regulations implementing the changes. After a string of U.S. Supreme Court decisions that appeared to limit the scope of the ADA, the ADA Amendments Act (ADAAA) specifically reversed the results of those cases, including many persons otherwise not categorized as disabled and, combined with the EEOC’s regulations, made it clear that the primary object of attention in cases brought under the ADA should be whether employers have complied with their obligations, not whether the individual meets the definition of disability.1 This means, for example, examining whether an employer has discriminated against an employee—including whether an employer has fulfilled its obligations with respect to providing a reasonable accommodation to an individual with a disability—or checking whether an employer has met its responsibilities under the ADA with respect to engaging in the reasonable accommodation interactive process.2 This places a burden on chiefs to speak with employees in an attempt to see if a reasonable accommodation can be reached whenever a person claims to be disabled and is interested in working.
The Interactive Process
An employer is not required to speculate about whether an employee’s physical or mental impairment would require some accommodation. It is the applicant’s or employee’s responsibility to request such accommodation.3 In fact, the request must be clear and communicated to the employer.4
In making a request for an accommodation, an individual should describe the disability necessitating the change. This will allow both the employer and the individual to work together in attempting to fashion a reasonable accommodation. An employer is not required to provide the accommodation that the employee prefers. Consider that a police officer’s request for a four-hour shift as an accommodation was found to be unreasonable after he rejected the department’s offer of a light-duty assignment.5 Similarly, an employer was found not liable for failing to transfer an employee as requested, since another reasonable accommodation was offered but rejected by the employee.6
The ADA does not require a department to promote an employee as an accommodation.7 It is even possible that acquiescing to an employee’s requested accommodation may not avoid liability, especially if the suggested action may not be effective or the most cost-efficient alternative.
Following are examples of reasonable accommodations involving police officers discussed by various courts:
- There was no need to modify the duties of a police officer to those of a dispatcher as a reasonable accommodation8
- A request by epileptic airport safety officer to be relived of driving duties was not a reasonable accommodation where the job required driving in solitude and being prepared to handle a wide variety of matters other than office work9
- A police officer whose disability prevented him from making forcible arrests posed a threat to safety that could not be accommodated through assignment to a nonpatrol position.10
Long gone are the days when a chief could tell officers that if they could not do their jobs, they should stay home or find another place to work. Just because a person cannot do every aspect of the job does not preclude them from working. Chiefs must be able to differentiate between essential and nonessential job functions. Job descriptions should reflect these as well. An individual with a disability is considered qualified if the individual can perform the essential functions of the position held or desired with or without reasonable accommodation.11
A chief is required, absent undue hardship, to provide reasonable accommodation to an otherwise qualified individual with a substantially limiting impairment or a “record of” such an impairment. However, a municipality is not required to provide an accommodation to an individual who meets the definition of disability solely under the “regarded as” prong.12 On the other hand, if the individual is covered under both the “regarded as” prong and one or both of the other two prongs of the definition of disability, the ordinary rules concerning the provision of reasonable accommodation apply.13
The interactive process may result in no appropriate solutions, which can lead to a claim of failure to accommodate. When an employer can show it made a good-faith effort in consultation with the employee to identify and provide a reasonable accommodation, punitive and certain compensatory damages may be avoided.14
Further, chiefs should not only become familiar with the interactive process required to respond to requests for accommodation, but they should also ensure that their command staff and supervisory personnel are aware of their roles in this process. A first step is to be able to properly respond to requests to accommodate an employee’s disability. Often, the employee will be able to suggest what is needed so the employer and the employee arrive at a solution.
In addition, supervisors must be taught the importance of not violating the ADA by asking impermissible disability-related questions when trying to recognize when a request is being made and respond appropriately.
A request for accommodation does not have to be in writing, and employees need not even use the words reasonable accommodation. While a department can ask its officers or employees to put the request in writing or to fill out a form, it cannot ignore the initial oral request. The EEOC’s Enforcement Guidance: Reasonable Accommodation and Undue Hardship under the Americans with Disabilities Act makes it clear that all that is necessary is for the employee or applicant to let the employer know that a modification or a change is needed because of the limitations caused by a disability.
Chiefs and any supervisory officers who receive a request or engage in the interactive process should be sure to create a paper trail of their compliance with the ADA’s requirements. As with all police activities, written documentation is essential and will help identify what requests were made, what efforts were taken to provide accommodations, and whether there was any consultation with experts. Call the Job Accommodation Network at 1-800-526-7234 for helpful ideas regarding addressing requested accommodations. ♦
1ADA (Americans with Disabilities Act) Amendments Act of 2008, section 2(b)(5), http://www.ada.gov/pubs/adastatute08.pdf (accessed August 14, 2012).
2See also 154 Cong. Rec. S8840–S8844 (daily ed. Sept. 16, 2008) (statement of Managers), http://www.law.georgetown.edu/archiveada/documents/s.3406statementofmanagers.pdf (accessed August 14, 2012).
3Singer v. Office of the Senate Sergeant at Arms, 173 F.3d 837 (Fed. Cir. 1999).
4Huppenbauer v. May Department Stores Co., 99 F.3d 1130 (4th Cir. 1996) (unpub.).
5Querry v. Messar, 14 F. Supp. 2d 437 (S.D.N.Y. 1998).
6Scheer v. City of Cedar Rapids, 956 F. Supp. 1496 (N.D. Iowa 1997).
7Davoll v. Webb, 943 F. Supp. 1289 (D. Colo. 1996), citing Daughtery v. City of El Paso, 56 F.3d 695 (5th Cir. 1995), cert. denied, 116 S. Ct. 1263 (1996).
8Conklin v. City of Englewood, 1996 U.S. App. Lexis 26173 (6th Cir. 1996) (unpub.).
9Scheer, 956 F. Supp. 1496.
10Champ v. Baltimore County, 884 F. Supp. 991 (D. Md. 1995), aff’d, 91 F.3d 129 (4th Cir. 1996) (unpub.).
1129 C.F.R. § 1630.2(o).
1242 U.S.C. § 12201.
1329 C.F.R. § 1630.9(e).
1442 U.S.C. § 1981(a).
Please cite as:
John M. (Jack) Collins, "Reasonable Accommodation under the Amended ADA," Chief’s Counsel, The Police Chief 79 (October 2012): 10–11.