Spring 2014 | 5 | The Labouring Oar
Modified Work Schedules under the ADA
By Joyce E. Smithey and Betina Miranda
Modified work schedules are receiving increasing attention
as a reasonable accommodation for employees with disabili-
ties. On May 15, 2013, the Equal Employment Opportunity
Commission (EEOC) issued four new “Question and Answer”
guidance documents (available at www.eeoc.gov/laws/types/
disability.cfm) which highlight specific types of reasonable
accommodations for persons with cancer, diabetes, epilepsy,
and intellectual disabilities. All four documents listed a modi-
fied work schedule as a suggested accommodation. But what
exactly is a modified work schedule? And when is a modified
schedule reasonable or unreasonable, regardless of the impair-
ment at issue? The questions present complex, fact-intensive
problems. Fortunately, recent case law across the country
provides some practical guidance for employers and employ-
ees alike.
The Americans with Disabilities Act (ADA) prohibits
employers from discriminating against a “qualified individual
with a disability” because of a disability. 42 U.S.C. § 12112; 29
C.F.R. § 1630.4. The ADA also requires employers to grant a
reasonable accommodation if it would enable an individual to
perform the essential functions of the job, unless the employer
demonstrates that the accommodation would impose undue
hardship to its business. 42 U.S.C. § 12112; 29 C.F.R. § 1630.9.
A reasonable accommodation is any change in the work envi-
ronment or to work practices that allows the disabled indi-
vidual to enjoy equal employment opportunity. For example,
time off for medical appointments and ergonomic office equip-
ment can be reasonable accommodations.
Under the ADA, a modified work schedule can be a reason-
able accommodation. According to informal guidance from
the EEOC, a modified work schedule can involve adjusting
arrival or departure times, changing shift assignments, pro-
viding periodic breaks, altering when certain work functions
are performed, allowing an employee to use accrued paid leave,
or providing additional unpaid leave. See EEOC Enforcement
Guidance No. 915.002 (Oct. 17, 2002) (available at www.eeoc.
gov/policy/docs/accommodation.html).
Assignment to a “less active” shift can be a reasonable
accommodation. In Christmas v. The Arc of the Piedmont,
Inc., 2012 U.S. Dist. LEXIS 98385 (W.D.Va. July 16, 2012),
the employee, Regina Christmas, suffered from Ehlers-Danlos
Syndrome, a connective tissue disorder that limited her abil-
ity to walk, bend, lift, and stoop. Her employer, an assisted
living facility, assigned her to work the overnight shift as an
accommodation as the shift required significantly less physi-
cal activity. Ms. Christmas found that she was able to perform
her job duties successfully in the overnight shift. However,
after Ms. Christmas reported patient abuse to her supervisor,
she was re-assigned to day shifts and ultimately terminated.
Ruling on the employer’s motion to dismiss, the court found
that Ms. Christmas stated a plausible failure to accommodate
claim. Assignment to the overnight shift would be a reason-
able accommodation for her impairment under the facts that
she alleged.
A “work when you want” schedule is not a reasonable accom-
modation. A request for a flexible schedule is not reasonable
if the employee requests to work whenever he wants. In
Solomon v. Vilsacks, 845 F. Supp. 2d 61 (D.D.C. 2012), the
employee, Linda Solomon, began missing work after her pre-
existing depression worsened. Her regular schedule was 7:30
am to 6 pm, four days a week. Within ten weeks, she used more
than 110 hours of leave time by deviating from her normal
schedule. Ms. Solomon claimed that she still did all her work
and met her deadlines by arriving at work early some days
and working late other days, as her condition permitted. She
made a request for a “maxiflex” schedule, which Ms. Solomon
described as allowing her to work as many or as few hours per
day as she wanted, as long as she met her weekly requirement
of 40 hours. The employer eventually denied her request. At
summary judgment, the court determined that this request
was unreasonable as a matter of law, pointing to the fact that
Ms. Solomon’s job involved meeting frequent deadlines, which
she admitted at her deposition. Even if she had “fortuitously”
met her deadlines in the past despite her erratic hours, this
was not a predictor of future success. The employer was enti-
tled to some predictability given the deadline-driven nature of
the position.
Facilitating the employee’s commute may be reasonable.
Even if an employee does not need an accommodation to
perform his job duties, he may need an accommodation to
get to work. In Livingston v. Fred Meyer Stores, Inc., 388
Fed. Appx. 738; 2010 U.S. App. LEXIS 15044 (9th Cir. July 21,
2010), the employee, Michelle Livingston, requested an earlier
shift so that she would not have to drive home at the end of
her shift in the dark. Ms. Livingston had a vision impair-
ment which prevented her from driving and walking outside
safely after dark. In fall and winter 2005, her supervisor had
modified Ms. Livingston’s schedule at her request to mini-
mize driving after dark. However, in fall 2006, the employer
refused to make the same accommodation. The court found
that because the employer had not experienced any hardship
during Ms. Livingston’s modified schedule in 2005 (and, in
fact, Ms. Livingston had increased sales during that time), her
requested accommodation was reasonable and should have
been granted.
A modified work schedule may include a part-time work
schedule. However, changing a full-time position to a part-
time position is not reasonable if the change would require
the elimination of an essential job function. Factors that are
important in determining whether a function is essential
include: the employer’s judgment; whether the functions are
listed as essential in a job description; whether other employ-
ees in the same job position have been required to perform
these duties; the number of other employees who are available
to perform the function if the disabled employee is not; the
amount of time spent performing the function; and whether
the function is the purpose of the job. 29 C.F.R. § 1630.2(n);
EEOC Opinion Letter dated Feb. 3, 2005, available at www.
eeoc.gov/eeoc/foia/letters/2005/ada_reas_accomm.html.
Spring 2014 | 6 | The Labouring Oar
Recent cases indicate that a reasonable part-time modifi-
cation is likely to be temporary. In White v. The Standard
Insurance Company, Inc., 895 F. Supp. 2d 817 (E.D. Mich.
2012), the plaintiff employee, Darla Kay White, worked as a
commercial insurance agent in the trucking lines department.
She and the other agents worked full-time and had specific
customers assigned to them. After an injury to her back and
a related medical leave, Ms. White’s doctor released her to
return to work on a part-time basis with the belief that she
would be able to resume full-time work in a couple months.
The employer had never employed a part-time agent before,
but it agreed to allow her to work part-time for a six-week
period as a trial. During this period, Ms. White’s supervisor
and co-workers observed that the accounts that she was exclu-
sively assigned to were suffering. At her deposition, Ms. White
admitted that her not being available full-time was detrimen-
tal to her clients. After a few weeks of part-time work, Ms.
White’s doctor extended her part-time restriction by another
month. Ultimately, the employer terminated her employment
when she was unable to return to full-time work. At summary
judgment, Ms. White argued that she should have been given
a part-time schedule on an indefinite basis. The court deter-
mined that this was a request that an essential function of her
position be eliminated or, at the very least, that she be allowed
to perform only some of her responsibilities. The court ruled
that this would not be a reasonable accommodation.
Another court came to a similar conclusion in West v.
New Mexico Taxation and Revenue Department, 757 F. Supp.
2d 1065 (D.N.M. 2010). The employee, Ulrike West, was
diagnosed with Relapsing Remitting Multiple Sclerosis. She
requested several accommodations, including 20 hours of
leave without pay per week and the permanent reclassification
of her job from full-time to part-time status. Her employer
granted the request for leave but declined to reclassify her
position on a permanent basis; it was concerned that, once
it abolished the full-time position, it would be difficult to
obtain funding for it again in the future. The court found
that Ms. West was reasonably accommodated with the grant
of 20 hours of leave per week and that the employer was not
required to permanently reclassify the position.
Likewise, in Konspore v. Friends of Animals, Inc., 2012
U.S. Dist. LEXIS 38334 (D. Conn. Mar. 20, 2012), the plaintiff,
Sharon Konspore, was the accountant and controller for a
non-profit organization. She requested a permanent change
from full-time to part-time status because of the symptoms of
her chronic Lyme disease. Ms. Konspore argued at summary
judgment that the job could be done in 20 hours per week.
However, she testified at her deposition that she often worked
more than 40 hours per week in order to “get the job done.”
The court found this determinative of the fact that full-time
status was an essential function of her job.
As the above cases illustrate, determining a reasonable
modified work schedule is not a simple question: it requires a
thorough, detailed assessment of the individual circumstanc-
es. This assessment, however, is necessary, as modified work
schedules continue to be requested by employees. ■
Joyce E. Smithey is a Partner with Rifkin,
Weiner, Livingston, Levitan & Silver, LLC
and leads the firm’s labor and employ-
ment practice. Betina Miranda also prac-
tices in the firm’s labor and employment
group, focusing on discrimination, medi-
cal leave, and wage matters.
FBA L&E Section Co-Sponsors Affordable
Care Act CLE Program with the New
Orleans Chapter of the FBA
On Dec. 19, 2013, the L&E Section joined with the New Orleans
Chapter of the Federal Bar Association to present a 1-hour CLE
on “Understanding the Affordable Care Act.” L&E Section Chair
Karleen Green of Phelps Dunbar and Layna Suzanne Cook of
Baker, Donelson, Bearman, Caldwell & Berkowitz, PC addressed
the Affordable Care Act from both the employment and health
care law perspectives. ■
