Second Circuit: ADA Can Require Accommodation Even When Employee Could Perform Job Without It

The Americans with Disabilities Act (ADA) may require an employer to accommodate a disability even when an employee could perform the job without it. That is the upshot of the recent decision by the U.S. Court of Appeals for the Second Circuit in Tudor v. Whitehall Central School District. The ruling clarifies prior Second Circuit precedent and joins other circuits that hold “an employee with a disability is qualified to receive a reasonable accommodation under the ADA even if she can perform the essential job functions without one.”  

Background 

The plaintiff worked as a teacher for approximately 20 years in the defendant’s school district. She sought and was granted two 15-minute breaks per school day to accommodate post-traumatic stress disorder (PTSD) relating to prior workplace sexual harassment and sexual assault. The school district provided the requested accommodation from 2008 until 2016, when a new administration discontinued it. This prompted the plaintiff to take an FMLA leave in order to undergo “intensive outpatient” treatment. When she returned the defendant permitted her to take one break in the morning and an afternoon break only when other staff was available to cover for her. Beginning with the 2019-2020 school year, the defendant stopped providing any support for the afternoon break. The plaintiff took a second break on many occasions in violation of school policy, which allegedly aggravated her condition. The plaintiff acknowledged that she was capable of performing the essential functions of her job without the requested accommodation, but claimed that having to do so caused her “great duress and harm.” 

Court Decision

The plaintiff sued in the U.S. District Court for the Northern District of New York alleging failure to accommodate under the ADA. The defendant moved for summary judgment, and the district court granted the motion, concluding that the plaintiff’s admission that she could perform the essential functions of her job without accommodation prevented her from establishing a prima facie case under the ADA. The plaintiff appealed. 

The Second Circuit reversed and remanded the case to the district court for further proceedings. The Second Circuit decision rested largely on its interpretation of two ADA provisions:  

1. The ADA defines a “qualified individual” to mean “an individual who, with or without reasonable accommodation, can perform the essential functions of the employment position that such individual holds or desires.”¹
2. The ADA requires an employer to make “reasonable accommodations to the known physical or mental limitations of an otherwise qualified individual with a disability who is an applicant or employee, unless such covered entity can demonstrate that the accommodation would impose an undue hardship on the operation of the business of such covered entity.”²

Putting these provisions together, the appeals court said that an employer must, absent undue hardship, “offer a reasonable accommodation—such as a modified work schedule—to an employee with a disability if that employee is capable of performing the essential functions of her job with or without the accommodation.”  Reading the phrase “with or without” literally, the court said, “the fact that an employee can perform her job responsibilities without a reasonable accommodation does not mean that she must.” The employee may be a “qualified individual” entitled to reasonable accommodation “even if she can perform the essential functions of her job without one.”³ 

The Second Circuit acknowledged that language in some of its prior ADA decisions may have led to the district court’s confusion but clarified that reasonable accommodation claims, which are highly fact and context specific, must be weighed individually rather than dismissed based on a categorical basis.

The opinion carefully limited its holding, cautioning that the appeals court did not “consider the extent to which the necessity of an accommodation to the performance of essential job functions is relevant to any particular failure-to-accommodate claim; we hold only that the necessity of the accommodation is not dispositive.”⁴ In briefing, the parties had sparred over whether the plaintiff’s request fit the definition of “reasonable accommodation” in 29 C.F.R. § 1630.2(o)(1).⁵ The Second Circuit, however, did not refer to the ADA regulations, thus avoiding any potential conflict with a recent Eighth Circuit decision that relied heavily on the ADA regulations as a basis to deny a requested accommodation.⁶ 

Impact of the Decision 

After Tudor, employers in the Second Circuit clearly cannot rely upon a per se rule that employees who can perform the essential functions of their position without accommodation are ineligible for required accommodation under the ADA. In evaluating accommodation requests or considering discontinuing accommodation already provided, employers need to consider such factors as these: 

• Is the physical or psychological discomfort the employee seeks to avoid through accommodation tied to an actual disability or record of disability?
• Would the requested accommodation facilitate the employee’s performance of the essential functions of that position or mitigate disability-related pain in connection with the performance of their job duties?
• Would the requested accommodation enable the employee to enjoy the same benefits and privileges of employment as similarly situated employees without disabilities?
• Would the requested accommodation be reasonable and effective?
• Can the employer provide the requested accommodation without undue hardship? 

If the answer to each of these questions is yes, it is likely that the ADA will require the employer to provide the accommodation even if it is not strictly necessary for performance of the essential function of the job.