ADA Ruling Has Good and Bad for Employers

By Larry Feheley

The Third Circuit Court of Appeals recently issued a ruling on the Americans with Disabilities Act (ADA) that has both good news and bad news for employers.

The case involved an employee who worked as a Marketing Production Manager for a bank. In 1996 she went on short-term disability leave because of clinical depression. When she returned to work, her medication made it difficult for her to function in the morning. As a result, the bank allowed her to work from 9 to 6, instead of the normal 8 to 5 schedule for other employees. After some time on this adjusted schedule the bank asked her to return to the normal schedule. The employee then developed a pattern of frequent tardiness. She was counseled regarding her tardiness, during which she was asked if there was any reason why she was unable to report to work on time, and the employee repeatedly said that she could arrive at work on time. At no time did the employee request an accommodation to be allowed to return to a later starting time. When her tardiness continued, her employment was terminated.

The employee sued under the ADA. The district court ruled in favor of the bank, and the appellate court ultimately agreed. The courts pointed to the requirement under the ADA Regulations that, once an employee requests an accommodation, the parties must engage in an "interactive process" designed to identify a disabled employee's limitations and to explore potential reasonable accommodations. The courts observed that this is a reciprocal duty, obligating both the employer and the employee to engage in the deliberative process. In this case, since the employee never requested an accommodation to return to a later starting time, and since the deliberative process broke down because of the employee's failure to tell the employer of her condition and needs, the employee's claim was dismissed.

Another part of the decision is not such good news, however. In order to reach the accommodation issues, the court had to first decide that the employee was a qualified individual with a disability, which meant that the court had to determine whether the employee could perform the essential functions of the job, with or without reasonable accommodation. On this point, the bank argued that reporting for work on time and setting a good management example for subordinate employees were essential functions of the job. However, the appeals court disagreed:

"[W]e are not prepared to conclude that beginning work at 8:00 a.m. as opposed to 9:00 a.m. is an essential job function. That is especially true here as [the bank] does not suggest that [the employee] did not perform her job satisfactorily once she did arrive, or that [the bank's] business was injured by the extra hour it gave her to report for work during the period of accommodation."

The case is Conneen v MBNA America Bank, 2003 U.S. App.Lexis 13181 (3rd Cir. 2003).