How Long is Too Long for Delay on Reasonable Accommodations?
By Frank Ferreri, July 17, 2024
They say patience is a virtue. Does that mean the interactive process on an employee’s reasonable accommodation can go at a snail’s pace?
Not according to the court in Pelton v. DeJoy, No. 19-1766 (D.D.C. May 3, 2024), which indicated a four-year timeline between request and accommodation would be a delay too long to withstand a failure-to-accommodate challenge under the Rehabilitation Act.
The case involved an attorney hired by the U.S. Postal Service in 2013. Her disabilities included a spinal cord injury, cervical fusions, bilateral thoracic outlet syndrome, nerve damage, depression, and a genetic clotting disorder. During her time with the USPS, the attorney was diagnosed with or treated for peripheral nerve entrapment, carpal tunnel syndrome, tendon and ligament tears, tremors, anxiety, depression, chronic insomnia, and weight gain.
The attorney said she requested an ergonomic chair, desk, keyboard, and mouse during her first week on the job. She presented these requests to the employee who conducted her orientation, however, was told that there was no room in the budget. Instead, she was shown “a room full of broken office equipment” from which she was expected to select something that would work for her.
In 2014, the attorney received an ergonomic keyboard and mouse. In 2017, she received an ergonomic chair and desk.
Because of the failure of the USPS to accommodate her disabilities, the attorney allegedly developed tendon and ligament tears as well as pain.
In 2017, the attorney’s responsibilities changed, requiring her to perform additional typing-intensive work. The attorney’s doctor said she was to limit typing to only 20 minutes per hour and no more than three hours per day. Upon receiving this information, the USPS referred the attorney to the USPS’s reasonable accommodations committee, which began the interactive process.
Along with the ergonomic chair and desk, the attorney also received voice-dictation software.
Nonetheless, the attorney sought and received Family and Medical Leave Act leave before suing under the Rehabilitation Act for a failure to accommodate.
To establish a failure to accommodate claim, an employee must show:
- She had a disability within the meaning of the Rehabilitation Act.
- Her employer had notice of her disability,
- She was able to perform the essential functions with accommodation and
- Her employer denied her request for a reasonable accommodation.
In the attorney’s case, only the fourth factor was in dispute. She alleged that the USPS unreasonably delayed in granting her requested accommodations. The court sided with the USPS on the keyboard and mouse, reduced typing time, and voice-dictation software. However, it found triable issues regarding the attorney’s request for an ergonomic chair and desk.
Although it was disputed as to whether the attorney asked for the chair and desk as early as 2013, the court found that it was a question for the factfinder to decide.
“A reasonable jury could find that she requested an ergonomic chair and desk in 2013, that her request went unfulfilled for four years, and that such delay was unreasonable,” the court wrote.
The court noted that case law hadn’t set a bright line on how long is too long but found guidance from the following:
Ward v. McDonald, 762 F.3d 24 (D.D.C. 2014). In a footnote, the Ward court noted that the three months that passed between when the employee made her request and when she resigned was “no long delay” and rebuked the employee for cutting the interactive process short and “blam[ing] her employer for not immediately granting her specific request.”
Faison v. Vance-Cooks, 896 F. Supp. 2d 37 (D.D.C. 2012). The agency did not offer an explanation for a more-than-three-year delay in providing an accommodation other than to say that it was not “in any way intentional.” The court found the agency didn’t reasonably accommodate the employee’s need for voice-activated computer equipment.
Mogenhan v. Napolitano, 613 F.3d 1162 (D.C. Cir. 2010). This case suggested a three-year delay would be actionable, but noted that the employee in the case, who had sinus problems, didn’t give a date for when she attempted to start the interactive process. She didn’t have a basis to argue that the interactive process took so long as to constitute a failure to accommodate.
While the attorney’s case and the precedent cases don’t necessarily lend themselves to a hard-and-fast rule, common sense notions of “reasonable” should prevail. There are also a number of EEOC cases that discuss accommodation delays. If the interactive process is shifting from a months-long process to a years-long ordeal, it’s likely going too slow, and the agency may find itself in failure-to-accommodate troubles. [email protected]
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