Employment Law Update: Court rules that providing cleaning supplies is not a reasonable accommodation.

The Americans with Disabilities Act (“ADA”) requires employers to provide reasonable accommodations to qualified individuals with disabilities in order to allow them to perform the essential functions of the job, unless doing so would impose an undue hardship on the employer. An accommodation is required only if it allows a qualified individual to perform the essential functions of the job. The employee bears the burden of identifying the accommodation and demonstrating that it allows her to perform the essential functions. While the Amendments to the Act have eased the burden of establishing that an individual is disabled, the determination of what constitutes an essential function and what is a reasonable accommodation remains, in large part, open to interpretation.

A federal court in Georgia recently held that an employer is not required under the ADA to provide cleaning supplies to an employee with Obsessive Compulsive Disorder (“OCD”). In that case, the employee was a drive-through teller for a bank. In 2008, the employee provided medical documentation of her disorder. The employee testified that she worried constantly about cleanliness and that she engaged in a daily cleaning ritual at work which entailed cleaning her entire work station, including the floor, wall, phone, computer, window, and doorknobs. When she was assigned to an unfamiliar work station and did not have time to clean, she would put copy paper all over the station so that she would not have to touch anything. The employee brought all of her own cleaning supplies because she did not want to use any supplies that other people touched. The bank tolerated all of this conduct. After all, it’s hard to complain about an employee who keeps her workstation clean. Over the years, the employee submitted requests for accommodations such as asking the bank to allow her to work permanently at the drive-through window and for interim leave under the Family Medical Leave Act. The employer granted the requests.

In a matter totally unrelated to her OCD, the employee was disciplined on a few occasions for inappropriate conduct such as making an obscene gesture to a customer and saying inappropriate things to a co-worker. Eventually, the employee’s inappropriate conduct caught up with her and she was given the option of resigning or being fired. The bank gave her two days to decide. Instead, the next day, the employee requested FMLA leave. The bank denied the leave and terminated her. The employee sued the bank for violations of the ADA and interference with her rights under the FMLA, among other things.

In her ADA claim, the employee alleges that the bank denied her requests for her own personal cleaning supplies. However, testimony revealed that the employee never really requested the supplies. Instead, if she ran out of something she would ask the main branch for a replacement. Her managers testified that they didn’t even know she was using her own cleaning supplies. The court dismissed the failure to accommodate claim for a number of reasons. First, the court held that the employee failed to show that the bank knew she needed additional cleaning supplies. Next, the court held that even if she had asked for the supplies, she failed to show how the bank providing the supplies would have allowed her to perform the essential functions of the job. Therefore, the court held that the bank did not fail to provide reasonable accommodations by not providing cleaning supplies.

Another interesting holding in this case involves the claim of interference with rights under the FMLA. Under the Act, an eligible employee may take up to 12 weeks of unpaid leave annually because of a serious health condition as defined by the law. Employers are prohibited from interfering with an employee’s attempt to exercise her leave rights. In this case, the employee requested the leave during the period she was given to decide if she would resign or be terminated. The court found that by requesting the leave the employee was “attempting to capitalize on a courtesy extended by the Defendant” (i.e., allowing her to resign from her long-held position rather than being fired). The court held that because the employee knew she was going to be separated from the bank one way or another when she requested the leave; she was not eligible for protection under the FMLA. Consequently, the court dismissed the interference claim.

This case presents two interesting issues. First, a relatively minor request for accommodations (cleaning supplies) can lawfully be denied because the employee did not establish that they would assist her in performing the essential functions of the job. It also reflects the opinion of at least one federal district court that once an employee learns that her employment will be terminated, she no longer is eligible for protection under the FMLA. Of course, as with any decisions involving requests for accommodations or FMLA leaves, it is prudent for employers to discuss their options with their employment counsel.

Terri Imbarlina Patak