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Prison guard may have right to firearm accommodation, 10th Cir. says

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Dive Brief:

  • A proposed disability accommodation is not automatically unreasonable — and must still be considered — even if it appears to violate a neutral employment policy, the 10th U.S. Circuit Court of Appeals held in Hampton v. Utah Department of Corrections (UDC). The Dec. 4 ruling revived a corrections officer’s failure-to-accommodate claim under the Rehabilitation Act.
  • The officer was born with his index and pinky fingers missing on both hands, making it difficult for him to grasp and pull objects, according to court documents. UDC required permanent officers to qualify on and carry firearms approved by its firearms policy, including a Glock 9mm handgun, court records said. The officer qualified for the Glock, but he found it difficult to grip and requested an accommodation to carry a brand of handgun not approved by the policy, according to the record. UDC denied the request and later terminated him. He sued, alleging the employer failed to accommodate his disability.
  • A federal district court ruled for UDC, determining the firearms policy made carrying a UDC-approved firearm an essential function. It held that the officer’s request was unreasonable because it would have required UDC to remove an essential function. On appeal, however, the 10th Circuit reversed and sent the case back for further review. The appeals court said the lower court erred by relying solely on the firearms policy to determine carrying the Glock was an essential function. By the policy’s own terms, the relevant function would seem to be the officer’s ability to “safely carry and use a firearm — not just a Glock,” the court said. The officer’s request would, on its face, help him to perform that essential function, it said.

Dive Insight:

Under the Americans with Disabilities Act and the Rehabilitation Act (the ADA’s public-sector counterpart), employers have a fundamental duty to provide reasonable accommodation absent undue hardship, the U.S. Equal Employment Opportunity Commission previously emphasized in a guidance.

In the context of job performance, reasonable accommodations enable an employee with a disability to perform their job’s essential functions, the guidance says. The ADA gives specific examples of reasonable accommodations, including job restructuring or modifying equipment, a schedule or a policy, the EEOC and the 10th Circuit both noted.

The takeaway from the UDC case? “The simple fact that an accommodation would permit the worker with a disability to violate a rule that others must obey cannot, in and of itself, automatically show that the accommodation is not ‘reasonable,’” the 10th Circuit cautioned.

However, the case confirms what is clearly not considered reasonable — and what employers don’t have to do: Remove an essential function to accommodate an employee’s disability. 

For example, an employer may have to allow an employee who works an early shift to start a little later if their disability medication causes drowsiness in the morning, according to the EEOC. But for certain positions, the time during which an essential function is performed may be critical, and this could affect whether an employer can grant a request to modify the employee’s schedule, the agency pointed out.

Additionally, employers are not required to lower uniformly applied production standards, according to the guidance. Also, an employer “never has to excuse a violation of a uniformly applied conduct rule that is job-related and consistent with business necessity,” it added. This means employers never have to tolerate or excuse violence, threats of violence, stealing or destruction of property, according to the document.

One issue is particularly timely: As employers hoping to boost collaboration, productivity and innovation enact return-to-office mandates, they’re facing a rising number of requests for remote work to accommodate mental health disorders, such as anxiety and stress, according to media reports.

Following the pandemic, when many employers let employees telework on a full-time basis, they may find it more difficult now to argue remote work is not a reasonable accommodation for employees with qualifying disabilities, some experts have predicted.

In a 2021 blog post, Venable attorneys suggested proactive measures: First, review written job descriptions to make sure they accurately set out the job’s duties, and for jobs that require in-person work, explain why. Second, consider that a “well-drafted telework policy should notify employees that teleworking is not intended to be permanent,” they said.

Third, review current arrangements for inconsistencies, such was whether permitting some but not all employees to telework are based on job duties. And finally, respond to accommodation requests with an interactive process; review each request on a case-by-case basis; and have legitimate reasons why one was approved but another wasn’t.

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