2 big new ADA rulings back employers on job accommodation

Let’s get right to the heart of these two new employer-friendly federal appeals court rulings on the important subject of reasonable accommodation under the ADA. 

First, an accommodation request that conflicts with a federal safety regulation need not be provided.

And second, the ADA does not obligate employers to create new positions to accommodate an employee with a disability.

Now, the details.

Firefighters Lose Bid to Bend Respirator Rule

A number of Black firefighters for the City of New York (FDNY) had a skin condition called Pseudofolliculitis Barbae (PFB). The condition causes consistent irritation and pain following shaving. It is medically recommended that people with the condition avoid shaving down to the skin.

Firefighters must wear respirators when fighting fires. Federal regulations require that the respirators fit well enough to create a good seal. The regulations say facial hair cannot come between the sealing surface of the respirator’s facepiece and the face.

Accommodation Was Allowed

For a time, the FDNY granted a medical accommodation to firefighters with PFB. It allowed beards measuring up to one quarter inch in length. Those seeking the accommodation had to pass a test that showed a proper seal was being maintained.

There were 20 firefighters who participated in the program that allowed the accommodation. There were never any safety issues.

Things changed around May of 2018, when the FDNY determined that the federal safety regulations banned the accommodation. As a result, it stopped offering it.

Two Options

The men who had participated in the program were told that they could either shave their faces clean or be placed on light duty. They all selected the first option.

Four of the affected firefighters sued the FDNY and other defendants. They alleged violations of the ADA, Title VII, the federal Constitution, and several other laws.

They asserted that the defendants violated the ADA by revoking the accommodation. They premised the Title VII claim on the fact that PFB affects Black men more than it affects men of other races.

Split Decision Below

A federal district court ruled for the firefighters on their ADA claim. It ruled against them on all their other claims. As to the ADA claim, it decided that the FDNY’s interpretation of the relevant safety regulation was unduly restrictive. To reach that conclusion, it relied on a guidance letter issued by the Occupational Health and Safety Administration, which issued the regulation. It also noted that the FDNY had allowed the accommodation for more than two years without incident.

Both sides appealed.
The U.S. Court of Appeals for the Second Circuit reversed the lower court’s ruling with respect to the ADA claim. It otherwise affirmed its decision.

The Key Issue

The appeals court aptly explained that the key issue in the case with respect to the ADA claim related to the interplay between federal safety regulations and the ADA’s requirement that covered employers provide reasonable accommodations to qualified applicants and employees with disabilities.

If an accommodation is expressly barred by a federal safety regulation, does that automatically mean it need not be provided?

Yes, the appeals court said.

By definition, the court said, such an accommodation is not a reasonable one under the ADA.

Plaintiff Has Burden

When making an ADA claim of unlawful failure to accommodate, the plaintiff has the burden to show there is an accommodation that would enable performance of essential job functions. Once the plaintiff suggests a plausible accommodation, the burden shifts to the employer to show that the suggested accommodation is unreasonable, the court explained.

Here, the safety regulations unambiguously require firefighters to be clean shaven when a respirator seals against their face.

What About Past Practice?

The firefighters argued that this fact did not render the requested accommodation unreasonable, especially because it had already been provided without causing any problems. But the FDNY was not required to “defend the wisdom” of the safety regulation, the court said.

Plain and Simple

Quite simply, the appeals court said, “An accommodation is not reasonable within the meaning of the ADA if it is specifically prohibited by a binding safety regulation promulgated by a federal agency.”

Employers are not required to defend their adherence to a binding safety regulation, even if the regulation in is conflict with ADA goals, the appeals court said.

Regulation Is Binding

The federal safety regulations were binding on the FDNY, and they barred the accommodation that the firefighters sought, the court said.

As a result, the lower court erred when it issued a ruling in favor on the firefighters on their accommodation claim under the ADA, it decided.

The ruling for the firefighters on the ADA claim was reversed.

Bey v. City of New York, No. 20-456, 2021 WL 2345249 (2d Cir. 6/9/21).

Job Share Was Not Required, Court Decides

A pharmaceutical sales rep had an autoimmune disease. She had surgery to remove a brain tumor. She then took off 10 months to recover. When she returned to work, she was provided with a job-share partner. The arrangement allowed her to split the workload of a normal position with another employee.

When her job-share partner resigned, she began working on a part-time basis before returning to full-time status.

Following a reassignment that increased the amount of time she spent traveling, the sales rep began to experience joint pain and stiffness.

Doctor Imposes Restrictions

She took leave due to her medical condition, and a physician restricted her from working more than 30 hours a week. She decided to pursue another job-sharing arrangement, and another sales rep agreed to do it.

The employer refused to permit the job-share arrangement, saying that the arrangement “would not be a good business decision.”

The sales rep remained on leave, and the employer eventually terminated her employment.

She sued, alleging an unlawful failure to accommodate her disability under the ADA. A federal district court ruled in favor of the employer. The sales rep filed an appeal.

The U.S. Court of Appeals for the Fourth Circuit affirmed the lower court’s ruling for the employer.

The sales rep argued that her request for the job-share arrangement was a request for reassignment to a vacant position. That is an accommodation that the ADA and implementing regulations specifically contemplate, the court noted.

She Asked for Too Much

But the requested accommodation was not required because the job-share position did not exist and thus was not “vacant,” the court said.

Instead, the sales rep essentially asked the employer to create a new position for her to accommodate her disability. But the accommodation duty does not go that far, the court ruled. The decision for the employer was affirmed.

Perdue v. Sanofi-Aventis U.S., LLC, No. 19-2094, 2021 WL 2324553 (4th Cir. 6/8/21).