While watching the Oregon Ducks scrap for a win yesterday
in the Sweet Sixteen
, The Bullard Edge
received a very intriguing (fictional) mailbag letter from Buster, the owner of a small chain of pet stores. Buster recently informed his workforce about changes to the business that will take effect next month. In the wake of that announcement, two employees separately said that they will need to be excused from certain new job duties due to phobias. Buster is not sure how to proceed and asked for help. Here are his question and our response.
I am the owner of Mid-Town Pet Project. Edith, my late wife, started the company as a hobby, which is how she thought of the name. She loved pets and loved people having pets. We fulfill her dream by selling pets, which we have been doing for the past 17 years.
In addition to being the owner, I am the business director, inventory manager, HR director, marketing consultant, and, I think, on-call janitor. I do it all here.
A week ago we announced what I thought was an exciting expansion of our company. It was St. Patrick’s Day
and I scheduled a meeting for all employees in the morning before we opened. We have 10 locations so most employees appeared by video conference (my son Bill Fence is a wiz with computers).
I started the meeting by reminding employees about part of the legend of St. Patrick’s Day ~ the story that St. Patrick drove the snakes out of Ireland
. They were all on the clock, though, so I got right to the point with my employees. I told them that we now knew the snakes had been driven from Ireland and would arrive at Mid-Town Pet Project on April 1. (And, yes, the April Fools Day
implication was totally lost on me.) We had purchased The Snake Shack and would be adding snakes to our inventory of pets for sale.
As a result of this expansion of the business, two things were going to happen. First, all of our employees responsible for pet care were going to be cross-trained on snakes. We were bringing two employees on board from The Snake Shack and they would be conducting training at each store before the end of the month. Second, because of the increased inventory without much increase in headcount, all employees would now need to be cross-trained on the cash register. Up to this point, we have had some of our pet care employees who only handled pets.
To top things off, at the end of the video conference I also told employees that everyone would be receiving a 25¢ per hour pay increase. I signed off and figured that everyone would be happy.
Not so fast, Buster. On Monday, in my role as HR director, I received special requests from two of our pet handlers. Paul, in the Balboa Street store, asked to be excused from handling snakes. He provided a medical note that indicates he suffers from ophidiophobia
, which apparently is a fear of snakes
. The note indicates that being in the direct presence of snakes causes Paul to experience debilitating panic/anxiety attacks
The other request came from Mary, in the Main Street Store. Mary has never worked on the cash registers and she asked that she be excused from doing so going forward. She said that she would understand if she did not receive a raise. Mary also provided a medical note, which indicated that she has been in treatment for social anxiety
for a number of years and at present is unable to engage in one-on-one interactions with strangers.
What do I do? What if some other employee brings me a note that says blue paint scares him (our stores have blue walls)? Is there any end to all of this?
The Bullard Edge's Response:
Those are great questions, Buster. While The Bullard Edge
is not going to give you legal advice, we will outline the legal issues and applicable rules.
, we understand Paul. Just like Indiana Jones
, we do not like spending time with snakes.
, all kidding aside, it sounds like you have two employees who have brought medical conditions to your attention and have asked for modifications of their job duties. You are correct in believing that you should not ignore these situations.
, the separate requests from Paul and Mary should be viewed as requests for reasonable accommodation under the ADA and parallel Oregon state law. ADA regulations give us two definitions that are key to addressing these requests (see 29 CFR §1630.2
- Reasonable accommodation means modifications or adjustments to the work environment, or to the manner or circumstances under which the position held or desired is customarily performed, that enable an individual with a disability who is qualified to perform the essential functions of that position;” and
- Reasonable accommodations may include “job restructuring.”
, we will assume for the moment that Paul and Mary both have disabilities and that those disabilities impact their availability to perform the duties of the pet handler position (working with snakes in Paul’s case and working directly with customers in Mary’s case). Because of this assumption, Pet Project is going to have to face two questions.
- Are the duties in question essential functions of the pet handler position? This is a tricky issue where an employer is changing a job, as Pet Project has done. While an employer is allowed to establish the essential functions of a position, courts will look beyond what the employer says. The courts will look all of the available evidence to see if a particular function is, in fact, essential (such evidence might include a written job description or proof that performance of that function has actually been required of employees in the past). For Pet Project, working with snakes and working directly with customers are new duties of the pet handler job. These duties have not been in the written job description (assuming you have those) and they have not been required of all pet handlers (some, but not all, pet handlers have worked at the cash register). However, workplaces and jobs change. Pet Project will want to demonstrate that it made a real change in the pet handler job duties for business reasons unrelated to disability.
- If working with snakes and working directly with customers are essential functions, is there a way to enable Paul and Mary to perform these essential functions? Neither the ADA nor Oregon law requires an employer accommodate a disability by excusing the performance of any essential functions. That is per se unreasonable. In order to answer this question, you will need to engage in an interactive process with each employee.
, the “interactive process” is the vehicle for determining whether any particular form of accommodation is reasonable. You do not know, based on the two medical notes you have, whether Paul or Mary have permanent job-related limitations. Perhaps therapy will enable Mary to directly interact with customers or Paul to handle snakes. If a work-related limitation is short term, excusing performance of that function on a temporary basis may be reasonable. The interactive process is a flexible and informal communication between employer and employee designed to help the employer to determine whether any accommodation is needed and, if so, what form of accommodation would be reasonable, if any.
, I want to draw your attention to a judicial decision issued earlier this week. In Stevens v. Rite Aid Corporation (March 21, 2017), the Second Circuit Court of Appeals
faced a factual situation analogous to your situation. After Rite Aid added the giving of vaccinations to the list of duties to be performed by its pharmacists, a 34-year employee asked to be excused from the performance of that duty because he has a needle-related phobia. The employee had medical support for his condition. Rite Aid would not excuse the employee from this duty because it was an essential function of the pharmacist position and ultimately terminated its long-time employee. The appellate court found that Rite Aid complied with its obligations under the ADA.
- Essential function: “Rite Aid personnel testified, without contradiction, that the company made a business decision to start requiring pharmacists to perform immunizations in 2011.”
- The performance of essential functions: “We next consider whether there was a reasonable accommodation that would have enabled Stevens to perform the essential job function of administering immunization injections. It is important to bear in mind that the issue is whether a reasonable accommodation would have enabled him to perform that essential function, not whether, as some of Stevens’ arguments appear to suggest, he could perform his other duties as a pharmacist.”
- Not a reasonable accommodation: “A reasonable accommodation can never involve the elimination of an essential function of a job.”
Applying this reasoning to Pet Projects and the Paul and Mary situation, you have reported that you made a business decision to add essential functions to the pet handler position. Assuming those are essential functions, then the company is not going to have to excuse Paul or Mary from the performance of those functions (except, possibly, on a temporary basis).
I hope this helps. Good luck with the business expansion and best regards,
The Bullard Edge