Tuesday, March 3, 2015

Transfer as reasonable accommodation?

I once worked for a law firm (that shall remain nameless) that put me in a converted utility closet for my office. It was the only associate “office” open near the partners for whom I worked. It was so cramped that I has to turn sideways to shimmy past the desk to get to my chair.

I thought of this experience yesterday as I read a story on abajournal.com about a law firm associate who is suing her employer for disability discrimination, claiming it failed to accommodate her claustrophobia. She claims that her firm, which had previously permitted her to transfer to its Philadelphia office for different reasons, discriminatorily refused to transfer her to a nearby suburban office after she complained that the 24-floor elevator ride triggered a severe claustrophobic response. The firm initially permitted her to work from home while she sought treatment, and then allegedly fired her after she refused a transfer to an office 120 miles upstate.

Let’s start with some ADA basics. An employer does not have to create a position as a reasonable accommodation for an employee. However, transfer to a vacant position is a reasonable accommodation that an employer must consider when engaging a disabled employee in the interactive process.

These rules only tell part of the story for this case. What is a “vacant” position for a law firm associate? Could she still have serviced the same clients, and worked on the same cases, from a suburban office 10 to 20 miles away? Moreover, why did the employer cease the telecommuting accommodation after only one month, and only after the employee rejected the accommodation that would have required a four-hour daily commute, or for her to move upstate? These are fact issues that the court, or, maybe, a jury will have to work out as this case proceeds.

These questions, though, illustrate the type of dialogue you need to have both internally and with your employee whenever that employee requests a reasonable accommodation. Better to hash them out internally, then in court, right?