Today we discuss an interesting case from the federal appeals court in Philadelphia which discusses what efforts an employer must make, if any, to provide an accommodation which the employee likes.
A city laboratory employee – an analytical chemist – worked with solvents and developed health problems as a result of a chemical she was working with — methyl tertiary butyl ether (“MTBE”). She asked for this accommodation: “Avoid any type of work where she would have exposure to organic solvents. Transfer to another line of work. Avoidance of irritants.”
The employer offered her the option of wearing a full-face respirator but after a few times using it she said that it made her claustrophobic and caused her panic attacks. The employer then offered her a partial-face respirator, but she was afraid and refused to try it. She was ultimately fired because of her absences.
The issue before the Court was whether the offered accommodation for the health problem which she reported was reasonable for the employee’s disability.
The employee claimed that there were two other types of accommodation besides the respirator: (1) transfer to a different lab; or (2) replacement of the MTBE with another chemical, Pentane.
The Court held that “we do not need to discuss either the possibility that she could have been reasonably accommodated by a transfer … or her other post-hoc proposal that … MTBE [could be replaced] with the organic solvent Pentane, because the uncontroverted record reveals that the [employer] offered her a reasonable accommodation by use of a partial-face respirator but that she refused to attempt to use such a respirator.”
Therefore, said the Court, “we agree with the District Court that [the employee] is not a ‘qualified individual’ under the ADA because she refused to try the partial-face respirator made available to her.” Nor did the employee “take advantage of a City of Philadelphia employee assistance program available to her which could have provided her with counseling and treatment for claustrophobia and panic attacks.”
“In the circumstances, it is clear that even though not covering the entire face, a partial-face respirator could have alleviated [the employee’s] claustrophobia problems while protecting her from the effects of exposure to any organic solvents.
Takeaway: The Court said it best — “[a]n employer is not obligated to provide an employee the accommodation he requests or prefers, the employer need only provide some reasonable accommodation.”
This result is is certainly reasonable. However, we are compelled to ask whether the employee’s claustrophobia and panic attacks may also be considered disabilities such that any type of facial respirator would not be a reasonable accommodation and that perhaps her alternate proposals should have been considered.
The Court made much of the fact that the employee did not even try the partial facial respirator, but should the outcome of the case have turned on this fact? What if the employee had, in fact, tried the partial facial respirator and suffered the predictable claustrophobia and panic attacks?
What would the result have been in that case — would the Court have found this proposed accommodation “unreasonable” and looked to the employee’s “preferred” accommodation?