Workplace issues: Is an “Accommodation” forever?

Excerpted from a McElroy Deutsch Mulvaney & Carpenter LLP blog by Bernard E. Jacques

If an employer grants an accommodation to an employee, can the employer rescind the accommodation as circumstances change? This was the issue raised recently by the Fourth Circuit in its decision in Holmes v. General Dynamics Mission Systems, Incmed.

Sheila Holmes suffers from diabetes and a congenital condition characterized by short or overlapping toes. She was working as a shelter fabricator, which required her to use heavy equipment and machinery. Although her job description did not state that wearing steel-toed shoes were an essential function of the position, her employer posted signs throughout the area where she worked stating it was a requirement.

Ms. Holmes submitted a doctor’s note stating she could not wear steel-toed shoes because inflexible footwear can cause foot sores or ulcerations that could be life threatening. In response, the employer permitted her to wear flexible footwear, like tennis shoes.

After Ms. Holmes had been permitted to wear flexible shoes for years, an inspector issued a negative audit because another employee had been spotted without steel-toed shoes. Additionally, another employee was injured while failing to wear steel-toed shoes.

The employer sought to remedy the situation and avoid repeat violations. It began to vigorously enforce its steel-toed shoe policy. Ms. Holmes produced another doctor’s note stating she could not wear inflexible footwear. The employer sought to accommodate her by attempting to find compatible steel-toed footwear. It even offered to have steel-toed shoes custom made. She rejected all alternatives and submitted several more doctors’ notes.

The employer decided it could no longer accommodate Ms. Holmes and terminated her. She filed an action claiming that her termination was in violation of the Americans with Disabilities Act (ADA) because the employer failed to accommodate her disability.

The court rejected her claim, holding that she was not a “qualified individual” within the meaning of the ADA because she could not meet the safety standard – wearing steel-toed shoes. Ms. Holmes argued she had been permitted to wear flexible shoes for years and did so without injury. The court rejected this argument. It reasoned just because an employee performed a job without an injury for an extended period does not mean the employee performed her job safely.

The facts of this case involved a safety requirement, which was not disputed. There is no question an employer can require employees to wear certain articles of clothing to protect themselves or others. But it also shows that as the employer’s conditions change, what was a reasonable accommodation may not continue to be a reasonable accommodation.

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