An Assistant to Perform Essential Functions Is Not a Reasonable Accommodation

Reference: Law Firm of Shawe Rosenthal LLP

Under the Americans with Disabilities Act, an employer is not required to provide an assistant to perform an employee’s essential job functions, as the U.S. Court of Appeals for the Fifth Circuit recently noted.

In Thompson v. Microsoft Corporation, the employee, who had Autism Spectrum Disorder, sought various accommodations, including an assistant to assist with translating/interpreting verbal information from the employee into the appropriate written format (e.g. e-mail, powerpoint, etc.), to record meeting notes, and to assist with performing administrative tasks (e.g. travel booking, time and expense reporting, meeting scheduling, routine paperwork, monitoring timeliness and providing reminders). While some accommodations were provided, the employer refused to provide the assistant. Ultimately, the employee went on leave, did not return, and sued the employer for violations of the ADA, including failure to provide a reasonable accommodation.

The Fifth Circuit found that there was no failure to accommodate, as the accommodation sought by the employee – a full-time assistant – was not reasonable. As reflected in the job description and articulated by the employer, the employee’s job required direct and close working relationships with the client and others. The requested accommodation of an assistant would have interfered with the essential functions of communicating with the client and managing multiple complex projects in a fast-paced environment. In effect, the employee was seeking to have the assistant perform functions on which his role was expected to spend considerable time. Consequently, the Fifth Circuit found that the requested accommodation would inappropriately excuse the employee from performing his essential functions.

This is not to say that a full-time assistant of some sort is never reasonable. In the case of Searls v. Johns Hopkins Hospital, in which the court found that hiring a full-time sign language interpreter for a hearing-impaired nurse was a reasonable accommodation. The difference is that the sign language interpreter was not actually performing nursing duties, in contrast to the requested assistant in the current case, who would have been required to perform many of the employee’s actual functions.

Word from WorkSaver:

We see over and over in cases like this involving legal challenges alleging discrimination related to the ADA, the importance of a properly validated functional job description. Since 1993, WorkSaver has demonstrated unparalleled expertise in validating essential functions of jobs and translating that information into detailed, defensible, functional job descriptions. For more information on how WorkSaver can help your organization create highly defensible functional job descriptions, or improve your existing job descriptions to be more ADA compliant, call (800) 414-2174 or e-mail Richard Bunch, PhD, PT, CBES at dr.bunch@worksaversystems.com or Trevor Bardarson, PT, OCS, CBES at trevor@worksaverstystems.com.