Workplace Issues: No contact with supervisor is unreasonable accomodation

Lindy Korn

The Americans with Disability Act requires employers to accommodate your disability. They have to do this if the accommodation allows you to do your job. We call this a “reasonable accommodation” under the statute.

In Theilig v. United Tech Corp., a summary order decided by the Second Circuit on March 24 (no. 10-1417-cv), Theilig certainly had a disability under the ADA, having taken leave for heart surgery and receiving treatment for severe depression. In essence, Theilig was asking for an accommodation that allowed him to work from home for two months.

In this day and age, with Internet, email and videoconferencing, working from home could be an option.

But not in this case. The plaintiff wanted to work from home with “no direct person-to-person contact and definitely [no contact] with his previous co-workers.” His psychiatrist said that working with certain colleagues (in particular, with two supervisors) posed a risk of workplace violence or suicide.

This is not going to work under the ADA, according to the Court of Appeals (Katzman, Raggi and Lohier). I have no idea what happened to this individual at the office that he risks violence if he is near his supervisors, but working from home alone is not a reasonable accommodation, even in the modern electronic era.

The Court of Appeals concluded:

“While there is no per se rule against a change in supervisor, ‘there is a presumption … that a request to change supervisors is unreasonable, and the burden of overcoming that presumption (i.e., of demonstrating that, within the particular context of plaintiff’s workplace, the request was reasonable) therefore lies with the plaintiff.’

Here, where Theilig requested to have no contact whatsoever with any co-worker or supervisor, we conclude that he has not carried his burden of ‘identifying an accommodation the cost of which, facially, do not clearly exceed its benefits.’”

The court did reiterate that whether a requested accommodation is reasonable, is determined on a case-by-case basis.

Accordingly, the court also held that because Theilig did not state a prime facie accommodation claim, his employer was not obliged to engage in an interactive process with Theilig or work together to assess whether his disability could be reasonably accommodated.

The take home message here is that Theilig did not meet his obligation of stating a reasonable accommodation, and that more options for the same may have made a difference.

Lindy Korn practices at The Law Office of Lindy Korn and can be reached at [email protected] or (716) 856-KORN (5676).