An Accommodation May Not Be Reasonable Even If It Has Been Granted For a Long Time

  • Nov 26, 2019
  • ADA
  • Dennis J. Merley

A federal appeals court has ruled that the fact that an employee has been accommodated for an extended period does not mean that the accommodation is reasonable and must be continued.

Throughout Darrell Hartwell’s 16 years as a firefighter/EMT for Naval Support Activity in Panama City, Florida, he was late for work on a regular basis.  For the most part this was no issue since the Fire Department maintained a Memorandum of Agreement (MOA) with union allowing firefighters to informally exchange an hour of their time with a co-worker at the beginning or end of the shift.   Thus, a firefighter running late could call and ask a co-worker to cover for them while agreeing to return the favor sometime in the same pay period.  Hartwell did this on a constant basis with little attention from management.

Employee’s Tardiness is Alarming

Things changed for Hartwell in 2011 in two very significant ways.  First, the MOA was revoked and firefighters could only swap shifts on an occasional basis, and only with prior approval.  Second, Hartwell got a new supervisor who was not nearly as forgiving about his tardiness.  In fact, Hartwell began receiving regular and increasingly severe disciplinary actions, to the point where he was served with notice that termination proceedings were about to commence.

Hartwell then informed the Department that he had been recently diagnosed with Attention Deficit/Hyperactivity Disorder (ADHD), Depression, and Generalized Anxiety Disorder. He contended that these conditions caused his tardiness because they triggered insomnia for which he took medication that produced morning drowsiness.  Hartwell requested that he be allowed to use an hour of sick leave to cover his tardiness, and that the MOA be reinstated so he could resume informal shift-swapping.  The Department rejected these proposals and proceeded with Hartwell’s termination.

Hartwell sued, claiming failure to afford reasonable accommodation.  After the lower court dismissed the claim summarily, Hartwell appealed to the 11th Circuit Court of Appeals.

Employee Gets a Wake-Up Call

Hartwell’s claim boiled down to the following proposition: The long history of accommodating his tardiness proved that the accommodation was reasonable and the Department was therefore legally bound to continue it.  The Appeals Court disagreed and affirmed the dismissal.  First, they concluded that regular and timely attendance is an essential function of a firefighter job – you cannot fight fires if you are not present at the scene.  Since Hartwell was not able to perform this essential function either with or without his requested accommodation (late arrival), he was not a qualified disabled person under the Americans With Disabilities Act (ADA) and therefore was not entitled to reasonable accommodation.

In addition, the Court explained that even if an employer elects to accommodate an employee who cannot perform their job functions, they are not required to continue doing so into the future.  If an employee is not legally entitled to accommodation, the employer’s benevolence in offering one is not irrevocable and may be ended without liability.  As such, it was permissible for the Department to decide that though they had generously accommodated Hartwell in the past, they no longer wished to do so.

Finally, the Court noted that even if Hartwell merited accommodation, his request to be allowed to report late to work was an undue burden on the Department.  Requiring other firefighters to stay past their ending time to cover for Hartwell would increase their fatigue and therefore expose them to a greater safety risk in their inherently dangerous job.

Bottom Line

The important distinction in this case is that the employee was not qualified for his job because he could not perform an essential function (reporting to work on time) with or without accommodation.  The fact that the employer let this slide did not mean that they were obligated keep doing so.

In other cases, employees are qualified for their jobs but have received long-standing accommodations that permit them to perform the essential functions.  In those instances, it is more likely that a court could find that the longevity of an accommodation is evidence of its reasonableness.  Employers seeking to claim in those instances that such accommodation is not reasonable must be prepared to demonstrate substantially changed circumstances justifying the discontinuance of the accommodation.