To help prevent discrimination against employees with disabilities, both the federal Americans with Disabilities Act and the California Fair Employment and Housing Act require employers to provide an employee with a disability “reasonable accommodation.” This term means a modification or adjustment to the workplace that enables the employee to perform the essential functions (i.e., the primary duties) of the job.
Finding a reasonable accommodation can be a simple process. Sometimes, though, it involves working together with the employee who needs it, through an interactive dialogue. The employer must provide an effective and necessary accommodation, unless doing so would be an undue hardship—that is, extremely difficult and costly.
A recent California case reminds employers the duty to provide a reasonable accommodation is ongoing. The employer also is responsible for ensuring reasonable accommodations are implemented correctly and consistently over time.
A.M. v. Albertsons, LLC
The California Court of Appeal in A.M. V. Albertsons, LLC, examined the adequacy of a reasonable accommodation when, on one occasion, the accommodation failed. A.M. worked at the grocery store Albertsons, both at the meat and deli counter and as a checker. In January 2003, she took a medical leave to receive cancer treatment. As a side effect from the treatment, A.M. had a very dry mouth. To counteract this, she needed to drink large quantities of water, which caused her to need to urinate frequently.
When A.M. returned to work at Albertsons in January 2004, she told her managers she needed to be able to keep water with her at all times, and to use the restroom frequently. The managers said this was not a problem, and she just needed to say something when she needed to use the restroom. From January 2004 until February 2005, this accommodation worked fine.
One evening in February 2005, A.M. was working at the check stand. Only two other employees were working at the time: a courtesy clerk who was not qualified to work as a checker, and Kellie Sampson, who was in charge of store operations when no senior managers were in the store. There was no evidence Albertsons previously told Sampson about A.M.’s condition or her need for an accommodation.
Albertsons did not allow employees to leave the check stand at the front of the store unattended, so A.M. could not go the restroom unless Sampson was there to relieve her. At about 8:00 p.m., A.M. saw Sampson and said she needed to take a break. She did not mention that she needed to use the restroom. A delivery truck was arriving, so Sampson asked A.M. to wait, and A.M. agreed to do so.
Sometime later, A.M. called Sampson on the store intercom and told her she needed to go to the restroom. Sampson was unloading merchandise and told A.M. she had to wait. About seven to ten minutes later, A.M. called Sampson on the intercom again, and Sampson repeated that she was busy and could not relieve A.M. A.M. told Sampson she was going to go the restroom. Sampson did not give A.M. permission to leave the check stand, and hung up the phone.
A.M. did not go to the restroom. She was unable to control herself and urinated while at the check stand. Eventually, she left the store, extremely upset. Over the next few months, A.M. suffered from depression and was withdrawn. She attempted to return to work at Albertsons in May 2005, but the store was unable to offer her a schedule that allowed her to attend therapy meetings, a condition of her return.
Later, when A.M.’s doctor released her to return to work, he conditioned it on her attending classes twice per week and working a day shift, when more employees were working and it was easier for A.M. to go to the restroom. Although initially she had trouble getting the shifts she needed to accommodate these restrictions, at the time of the trial, A.M. was back at work and Albertsons provided restroom breaks when she needed them.
A.M. filed a lawsuit against Albertsons, claiming the company did not provide her with a reasonable accommodation for her disability when it failed to give her a restroom break in February 2005, and did not engage in the interactive process when she attempted to return to work in May 2005. After a trial, a jury awarded A.M. $200,000, agreeing that Albertsons failed to accommodate her.
The Duty to Engage in the Interactive Process
Albertsons unsuccessfully argued A.M. failed to participate in the “interactive process” by not notifying Sampson of her disability and the existing accommodation. The court explained the duty to engage in the interactive process and the duty to provide a reasonable accommodation are separate. The purpose of the interactive process is to determine what reasonable accommodation the employee needs. Once the employee and employer have established this, the employer must provide the accommodation. The employee does not have an ongoing duty to keep communicating with the employer; so, A.M. was not required to tell Sampson about the accommodation. In other words, the employer and employee share an obligation to find an accommodation. But once they do, the employer has the obligation to implement it.
The Duty to Provide a Reasonable Accommodation
A.M. claimed that in failing to accommodate her on the one occasion when she was not able to take a restroom break, Albertsons did not meet its obligation to provide a reasonable accommodation. Albertsons responded that this single incident, after a longer period of successful accommodation, was not significant enough to entitle A.M. to recovery.
The Court of Appeal agreed with A.M. It took a rigid approach to reasonable accommodation, specifically stating that “a single failure to make reasonable accommodation can have tragic consequences.” So, Albertsons’s single error, after over a year of sufficient performance, was enough to sustain a jury award. In the court’s view, Albertsons’s had a duty not only to provide a reasonable accommodation, but to continue to provide it without fail.
The reasonable accommodation in this case is “the ability to use the restroom frequently during a shift.” On the day in question, A.M. was denied that privilege because of the staffing in the store. A.M. therefore was “denied” the accommodation, albeit on one day. As a result, Albertsons was liable for damages. The extraordinary damages in this case for one missed rest room break were due to A.M.’s profound emotional distress and her pre-injury condition.
The court held Albertsons to a very high standard that may leave employers wondering how to ensure a reasonable accommodation is carried out perfectly, every time. Fortunately, the decision provides some clues about steps employers can take to stay on the right side of the law. In particular, employers should keep the following principles in mind:
- Involve the right people in the interactive process. Albertsons had a five-step procedure for providing reasonable accommodation to an employee with a disability, a process that may have worked if the company had properly implemented it. But the process relied on Albertsons’s human resources managers, not the store’s managers, meeting with the employee to discuss the accommodation. Had the store’s managers known human resources needed to be involved and contacted them to discuss A.M.’s situation, Albertsons may have been better able to manage the process from the start, with employees specifically trained and knowledgeable about the process.
- Ensure those who need to know about the accommodation do. In addition to Sampson, other store employees who were sometimes left in charge of the store testified they did not know about A.M.’s need for an accommodation. Had those individuals been aware of the need and the accommodation, they may have been better able to provide it. At the same time, providing information about a needed accommodation does not mean releasing private medical information, or telling people who do not need to know. Additionally, supervisors must be trained to keep confidential information about accommodations and to prevent discrimination and retaliation against employees with disabilities.
- Establish open communication. A.M. chose not to tell Sampson the reason she needed a break. She did not have to do so. Perhaps if she had a different avenue to make her concerns known, this situation would not have happened. For example, if she had a designated person or persons to call in case she was not given her accommodation, she might have been more comfortable to complain before things got out of hand. Employers also can improve open communication with simple steps like periodically checking in with the affected employee to ensure an accommodation is working and reiterating the organization’s commitment to a long-term, sustainable solution.
- Make sure the accommodation makes sense. An accommodation needs to meet legal standards, but it must also be practical. Also, the employer need not provide the employee’s choice of accommodation. Although A.M.’s accommodation worked for over a year, scheduling A.M. to work when relief options were made failure more likely. Even if Sampson had been aware of A.M.’s need for an accommodation, competing duties made it difficult for her to respond quickly. The later requested accommodation—having A.M. work the day shift, when more employees who could relieve A.M. were in the store—may have been the more practical solution from the start.
- Ask for input. While the Albertsons case makes clear that the ultimate responsibility for providing a reasonable accommodation rests with the employer, employers should still tell employees that that they want regular feedback and input. In policies, meetings, and follow up communications, employers should remind employees that they expect them to speak up right away if an accommodation is not working.
- Immediately address inadvertent errors. Employers may be able to avoid lawsuits by addressing inadvertent wrongs when they happen. It is unclear from the opinion whether Albertsons took affirmative steps to address the failure of the accommodation. The court suggested Albertsons was not immediately responsive to A.M.’s need to work the day shift after the incident. Had Albertsons responded sensitively to A.M.’s plight, she might not have been as motivated to seek legal action in the first place.
There is no denying that A.M. v. Albertsons complicates the legal landscape for employers seeking to provide employees with disabilities with the accommodations to which they are entitled. However, by adopting and carefully and consistently following a few important guidelines, a careful employer may be able to avoid a legal minefield when it is time to provide—and maintain—a reasonable accommodation.