A few weeks ago, we reviewed an interesting ADA court case that zeroes in on a pinpoint of the ADA: asking for an accommodation isn’t always a sure bet – the requested accommodation must actually enable the employee to perform her job. In Lang v. Wal-Mart Stores East, LP, Wal-Mart rolled the ADA dice and won. Here’s how:

Can She Do the Job – Even With an Accommodation?

Ms. Lang was dice_cupa Wal-Mart warehouse unloader who was required to unload freight from a trailer truck both manually and with power equipment. However, when she was placed on a 20 pound maximum lifting restriction by her doctor as a result of her pregnancy, she requested that Walmart exempt her from her lifting duties. Wal-Mart did not agree, maintaining that lifting and manually unloading freight was an essential function of her job. The court agreed, concluding that under the ADA, an employer is not required to accommodate an employee by relieving her from performing an essential job function – the requested accommodation must enable her to perform those functions, not simply work around them.

Ms. Lang also requested reassignment to a position that did not require the same manual labor burdens. As for that request, the court did agree that reassignment could be an accommodation, but only if the employee can point to an open position into which she could be reassigned. Such a position didn’t exist at the time of Lang’s accommodation request.

 Interactive Process Minimized – Beware!

The most surprising part of this court’s opinion, however, is that it didn’t find fault in Wal-Mart’s neglect of the interactive process with Lang. The court’s dismissive characterization of the process should have been our first clue:

  Sure, an employee’s accommodation request can “sometimes” trigger a duty on the  employer’s  part to talk with the employee, with the goal of finding a way to reasonably  accommodate her  disability.

The court went on to find that because the employee couldn’t point to any reasonable  accommodation that allowed her to perform the manual lifting job requirement, the employer didn’t need to engage in the interactive process. We would caution employers to steer clear of relying on this court’s conclusion too heavily. In addition to a general sense of disdain for this fundamental process, we assume that other factors influenced this position:

  • the employee’s “disability” was pregnancy, which the court admittedly punted on determining if a normal pregnancy is even covered under the ADA (the EEOC and courts tend to say pregnancy is not a disability)
  • the court’s irritation at the employee’s testimony and the employee’s lawyer, which it went to great pains to discuss in the court opinion

This portion of the decision could have easily gone the other way – the ADA indisputably requires an employer to engage in the interactive process when an employee requests an accommodation.

Watch out for New State Claims!Pregnant businesswoman

One last quirk: the court mentioned – but quickly dismissed – Lang’s state law claims. New Hampshire has a pregnancy-specific anti-discrimination and accommodation law that provides a leave of absence for a pregnant-related temporary disability, with job restoration upon her return. The court did not discuss this aspect to the state law at all, and it’s impossible to discern if that is because a leave of absence wasn’t the primary dispute (although she did take and exhaust FMLA), or for some other reason. New Hampshire’s legislature, along with many other states including Washington, Iowa, Georgia, and Oklahoma, currently has pending a new and enhanced pregnancy accommodation law that could significantly change the outcome of a case like this. According to the pending law (Senate Bill 488 introduced January 6), pregnant women would be entitled to a number of accommodations, including temporary transfer to a less strenuous or hazardous position, job restructuring, and light duty.

So, while this case reminds employers that you do not have to excuse an essential job function as a form of accommodation and that it is reasonable to ensure that the accommodation is going to enable the employee to perform the essential job functions, we strongly caution employers not to take chances like Wal-Mart did. We implore you to engage in the interactive process and have the conversation with the employee to explore if any accommodation might be available, including reassignment to a vacant position. In situations like this case, where an employer fails to provide a reasonable accommodation, evidence that the employer engaged in an interactive process can demonstrate a good faith effort, which can protect an employer from having to pay punitive and certain compensatory damages. And keep your eyes and ears open for new laws that are changing the landscape of an employer’s obligations to pregnant employees!

Remember, Reed Group keeps you updated on industry news such as new cases and pending and passed legislation. Stay on track with the latest – check out Reed Group’s web-based reference tool to keep you on top of compliance. Reed Group’s LeaveAdvisor® tracks pending and existing leave of absence laws in all 50 states and the federal leave laws, such as the FMLA, ADA, and USERRA. Try it, free, and tell us what you think.

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