Robert N. Holtzman Kevin B. Leblang February 13 2002 Accommodation Duty Extends Beyond 'Inconvenience' Kramer Levin Naftalis & Frankel LLP | Employment & Immigration - USA Robert N. Holtzman, Kevin B. Leblang Employment & Immigration Facts Comment One of the most perplexing questions facing employers is how much they must alter their normal operations to 'reasonably accommodate' a disabled employee. This issue was recently addressed by the US Court of Appeals for the Third Circuit,(1) which held that 'inconvenience' does not excuse an employer from providing a reasonable accommodation to a disabled employee, as required under the Americans with Disabilities Act. FactsSkerski was employed as an installer technician for Time Warner and its predecessor company, New Channels. Part of his work involved climbing ladders, poles and towers to service aerial cables. After more than a decade of doing this work, Skerski developed a panic and anxiety disorder related to heights.For several years, New Channels and Time Warner accommodated Skerski's disability by limiting his assignments to underground cable work. However, following a supervisors meeting at Time Warner, Skerski was told that the company would no longer permit him to continue working on his modified no-climbing schedule. Skerski responded by asking to use a 'bucket truck' for climbing jobs, which he had used successfully before his panic disorder developed. His request was denied. Time Warner then required Skerski to participate in a 90-day training programme intended to help him to re-acquire climbing skills for his job, telling Skerski that his failure to complete the course successfully "will lead to additional disciplinary action up to and including termination".(2) Skerski attempted but was unable to complete the course, due to his anxiety disorder. Time Warner planned to dismiss him. As an alternative, Skerski was offered a newly created position in a warehouse, which paid considerably less than his former job. Skerski accepted the warehouse position, but did so "under duress" because Time Warner "[was] threatening [him] with termination".(3) Shortly after taking the warehouse job, Skerski injured his back and began receiving workers' compensation benefits. He then filed suit under the Americans with Disabilities Act seeking damages and reinstatement to his "modified duty status" as an installer technician. Time Warner moved for summary judgment, which was granted by the district court. The court reasoned, in part, that the transfer to a warehouse was a reasonable accommodation.The Third Circuit reversed. The court found that transfer to a job for which the plaintiff was not qualified was not a reasonable accommodation under the statute, and that genuine issues of fact existed as to whether the reassignment required computer and inventory skills that Skerski lacked, and was more physically demanding. More significantly, the court noted that reassignment should only be considered when accommodation within the individual's current position would pose an undue hardship. The court observed that it was not clear that a reasonable accommodation within Skerski's installer technician position was impossible.(4)The court then characterized Time Warner's refusal of Skerki's requested accommodation as one based on inconvenience.(5) Stating that "the Americans with Disabilities Act was enacted to compel employers to look deeper and more creatively into the various possibilities suggested by an employee with a disability", the court found that the rejection of a 'bucket truck' for Skerski raised questions about whether Time Warner satisfied its burden to accommodate under the act.(6) The court noted in passing, however, that Time Warner's previous allowance permitting Skerski to work without performing overhead work was not relevant to whether his disability could be accommodated. The court explained that: "[t]his is because employers are not required to accommodate an employee by removing an essential function or restructuring a job so as to avoid it, but rather they are to provide an accommodation so as to enable the employee to perform such a function."(7)Comment Courts require employers to undertake good faith efforts to 'reasonably accommodate' employees with disabilities. Employers should engage in dialogue with disabled employees about ways in which their needs might best be met. Even if an employer views an accommodation as an inconvenience, unless it presents an undue hardship, the safest course of action may require acceptance of the inconvenience which the proposed accommodation represents. For further information on this topic please contact Kevin B Leblang or Robert N Holtzman at Kramer Levin Naftalis & Frankel LLP by telephone (+1 212 715 9100) or by fax (+1 212 715 8000) or by email ([email protected] or [email protected]). Endnotes(1) Skerski v Time Warner Cable Co, 257 F 3d 273 (3d Cir 2001).(2) Id at 277. (3) Id. (4) Id at 285.(5) Id. (6) Id.(7) Id at 286 n 4.