Thursday, April 24, 2008

Court vindicates employer who turned a blind eye to a request for a reasonable accommodation

Buboltz v. Residential Advantages, Inc., decided last week by the 8th Circuit, illustrates the important point that merely because an employee has a disability does not mean that an employer must make a reasonable accommodation. This case also highlights, however, the risks that employers assume when ignoring a potential request.

Buboltz is legally blind. Residential Advantage, Inc. ("RAI") provides residential services to disabled individuals who cannot live independently. It hired Buboltz as a direct service provider ("DSP"), meaning she was responsible for providing services to the residents. Part of a DSP's job is to provide transportation to the residents. As an accommodation for Buboltz's blindness, however, at the time of hire RAI exempted her from that job function. When her supervisor became concerned about some performance issues (such as dispensing a resident's medications 3 hours late, and touching a resident's crotch to determine if he had wet himself), she modified Buboltz's job duties further. Thus, Buboltz was no longer allowed to dispense meds or be alone with patients. It was explained to Buboltz that her job was being modified out of a concern that licensing agencies might take issue with her blindness. In response, Buboltz said, "I have, like, numerous devices that I can use."

Buboltz claimed that her statement was a request for a reasonable accommodation, which RAI failed to subsequently provide. The Court disagreed. It found that Buboltz's statement was not a request for an accommodation, but a statement that she did not need any accommodation. Because Buboltz's statement was not a request for a reasonable accommodation, RAI was not under any obligation to engage in any interactive discussion with her about whether an accommodation was possible.

This case is not as clear cut as the Court makes it out to be. RAI had already accommodated Buboltz when it hired her by waiving the driving requirement. An employer's duty to reasonable accommodate a disabled employee is a continuing one and is not exhausted by merely one effort. A good argument can be made that when RAI concluded Buboltz should not dispense medication or work alone with residents, it should have discussed possible accommodations that could have allowed her to maintain those job responsibilities. By failing to do so, RAI took a calculated risk that ended up paying off.

Despite RAI's success, the take-away for employers from this case is not to ignore employees' requests for reasonable accommodation. If an employee's statement can be construed as a request for help to perform a job because of a disability, the employer has an obligation to engage in the interactive process to determine if there is a reasonable accommodation that can be made. Employers who ignore this obligation do so at their peril.

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