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Fictional Mailbag: Is An Employer-Provided Placebo A Reasonable Accommodation Or An ADA Violation?

July 26, 2017

By Michael G. McClory

The letters in the (fictional) mailbag never fail to surprise the staff at The Bullard Edge.  Today’s letter does not disappoint.  Tee Rickey, the HR Manager of a local company, asks a question about reasonable accommodation for an employee with a mental disability.  One symptom of that disability is that the employee believes he has a physical disability.  Tee’s boss wants to use a ruse as a form of accommodation.  Tee does not like that and neither do we.  Here is Tee’s letter and our response.
 

Tee’s Question:
My hope is that The Bullard Edge will be able to expertly guide us through an unusual disability and reasonable accommodation situation.  Obviously, as the HR Director, I should know ADA basics, and I do.  However, as you will plainly see this is not a basic situation.
 
My company is a behind the scenes service provider.  I see other letters to your mailbag from more exciting companies (such as specialized storage companies, accidental toaster manufacturers, and gadget invention shops).  We just help other companies to concisely express themselves.  We are Totally Adverbs, a small grammar advisory service.  We take content blandly written by others and quickly improve it.  We also have a 24-hour adverb hotline.
 
The majority of our employees are Grammar Advisors or Language Technicians.  They dutifully trained for this work in libraries and coffeehouses across the country ~ reading and doing crosswords.  To make the workplace comfortable, our two WordCenters are modeled after college libraries.  There are lots of leather chairs, wood desks and lamps.  We have been extremely pleased with the results.
 
Here is the situation.  Webster, one of our Language Techs, quietly approached me three weeks ago and reported that he has a sensitivity to the smell of leather.  My gaze immediately went to his leather belt and loafers, but I digress.  I asked what he meant and he matter-of-factly explained that leather has toxins that affect his concentration.  Given the construction of our WordCenters I was not sure what we could do, but I decided to seek relevant medical information before trying to discuss reasonable accommodations.  Webster swiftly obtained the information requested.  His doctor indirectly affirmed that Webster is sensitive to smell of leather, but cautioned that the sensitivity is mental, not physical.  Webster sincerely believes he has a physical sensitivity when in fact he has a form of anxiety and leather aversion is a symptom of that.  The doctor hoped that in time treatment would help Webster overcome this aversion.
 
I recently spoke to Mark Down, the company President, about this situation.  Given that the workplace is lousy with leather, I told Mark that I planned to speak to Webster about telecommuting.  Mark nearly agreed, but then hatched a plan ~ a plan that worries me greatly.  Mark suggested that we try what you might call a placebo.  Specifically, he wants to take an ordinary water spray bottle and put a phony product label on it.  He proposed passing this off as a product called “Leather Duster” that “neutralizes” toxins from leather, even though in reality the bottle would contain water mixed with a small amount of leather cleaner.  Mark believes that Webster will accept it and be fine if we promise to weekly treat all leather chairs and couches with this product. 
 
I worry that this is unlawful.  At a minimum, it is absolutely dishonest.  However, Mark says it would be an effective accommodation and that I need to do this to help Webster.  What do you think?  Please help.
 
The Bullard Edge's Response:
Tee, that is quite a yarn.  Before responding, please understand that we do not give legal advice (call your employment lawyer for that).  We will help you focus on the issues that you have raised, though.
 
First, it seems that you have a solid understanding of disability, reasonable accommodation, and the interactive process.  Both the ADA and comparable state laws prohibit an employer from discriminating against a qualified individual with a disability because he or she has a disability.  This prohibition applies in the application process, in hiring and discharge, in promotion and training, in compensation, and in the terms, conditions and privileges of employment.  Webster’s doctor confirmed that he has a leather sensitivity that is mental, rather than physical.  For our purposes we will construe Webster to be an individual with a disability.
 
Second, unlawful discrimination includes not making reasonable accommodations to the known physical or mental limitations of an otherwise qualified applicant or employee.  If there is a reasonable accommodation (one that is needed, would be effective, and does not present an undue hardship), then denial of that accommodation likely would be unlawful discrimination.  You did not indicate whether Webster requested any action (such as replace all leather or provide him with a separate workspace).  However, your letter suggests that you think telecommuting might be reasonable.
 
Third, while there are many forms of accommodation, not every accommodation is reasonable.  Determining whether any particular accommodation is reasonable requires communication.  This is typically called the “interactive process” and it is designed to help an employer and applicant/employee determine whether reasonable accommodation is possible.  It is basically an information gathering process and serves as the primary vehicle for identifying and achieving necessary and effective adjustments that will allow an individual with a disability to perform the essential functions of a particular job.  An accommodation is not required if it is not needed, would not be effective, or would constitute an undue hardship.  It sounds like this is the conversation that you are planning to have with Webster.  If so, that seems like a good move.
 
Fourth, we need to talk about Mark’s suggestion of a placebo accommodation.  I consulted with Alan Lee, a colleague with tremendous experience dealing with reasonable accommodation issues.  While he had never heard of this kind of accommodation stratagem, he instantly took a dislike to Mark’s approach.  Alan said that the “Leather Duster” trick is really nothing more than the company acting as a doctor and deciding how to treat Webster’s anxiety condition.  That is not the employer’s role.  Instead, Alan suggested that a better approach would be to meet with Webster (as you planned to do) to discuss the medical information and the next steps.
 
Fifth, we note that the medical information is tricky.  His doctor reported that the sensitivity to leather is emotional and not physical.  Rather than trying to be cute about it, a sound approach may be to simply ask Webster whether he is aware of that. 
 
Sixth, you also will want to discuss next steps with Webster.  He does have a disability that interferes with his ability to do the job.  While it does not cause any physical reaction, it does impact Webster’s concentration.  In talking with him, your goal is to find a way to enable Webster to perform the essential functions of his job.  You will want to ask Webster for his opinion and offer any suggestions that you believe might be effective.  Given that you mentioned it, we gather that you believe that telecommuting might be a possible reasonable accommodation
 
We absolutely hope this helps you to effectively sort through the issues.  Let us know how it goes.
 
Best regards,

The Bullard Edge
 

Content ©2017, Bullard Law. All Rights Reserved.
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About the Editor

Be informed, engaged and sometimes entertained

Michael G. McClory joined Bullard Law in 1997. He likes talking about employment law, debating it, proposing revisions to it and even complaining about it.  Perhaps so they could get some work done, his colleagues at Bullard Law suggested that he start a blog about employment law issues (broaden the conversation). And that is how this blog came to be. 

The blog is a forum for discussion about employment, labor and benefits law - new laws, proposed laws, case decisions and social events. Mike will share his views and invites you to respond.  Reader feedback is valuable and will be featured from time to time. Join the discussion with Mike and sign up for the Bullard Law Blog today.

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