Jane is a field engineer (engineer) for Able-Bodied Company (ABC), a pharmaceutical company that sells and maintains blood chemistry analyzers (standard lab equipment found in hospitals and doctor’s offices). She has a large geographic territory to cover and can drive as many as 125 miles portal-to-portal to reach a client. Engineers work long hours and determine their own schedules based on the analyzers’ routine preventive maintenance schedules and client calls reporting that a machine is down or malfunctioning. The engineers typically work in hospitals or labs at night when the demand for the analyzer is at its lowest and the analyzer can be taken offline. Jane’s job requires a highly specialized set of skills that are necessary to troubleshoot blood analyzers and their computers: chemistry and hematology backgrounds as well as computer skills to deal with hardware and occasional software problems. The position also requires good eyesight because the engineer must be able to clearly see (and read) tiny electrical and mechanical components in the analyzers and computers and perform an “eyeball” test on several of the chemicals used in the analyzers. Jane is considered one of the best in her field and loves her job.
Jane has been with the company for 25 years and in this job for 15 years. ABC has asked Jane several times in the last 12 years to accept a promotion to area consultant, but she has declined. An area consultant is a troubleshooter who travels over one of four regions of the United States, e.g., the southeast, and deals with analyzer problems that engineers haven’t been able to resolve. The job would pay significantly more but require that she fly at least twice a month and be away from home for several days at a time. Jane doesn’t like to fly because of allergies; she’s not interested in being away from home for more than a day because she recently became engaged, is owned by three dogs and a cat, and has three grown children and one grandchild who live near her. One of her children, George, is mentally ill, has a substance abuse problem, and is constantly in and out of jail.
The last four years have been more tumultuous than most for Jane:
- Four years ago when she was 56, Jane’s thyroid was removed because of benign masses that were growing on it. She takes synthroid, which is a synthetic thyroid hormone used in replacement therapy.
- About two ago, she was diagnosed with Type II diabetes (non-insulin diabetes); she had had gestational diabetes with her first child, so the diagnosis was not a shock. Her doctors are having difficulty finding the right medication and dosage to stabilize her blood sugar.
- Fourteen months ago, George stabbed someone and almost killed him. Jane employed a lawyer to get George out of jail while he awaits trial. Jane understandably has experienced a lot of emotional upheaval and second-guessing trying to do what’s best for George, but the stabbing brought on feelings of stress and depression that caused her to start regular psychological counseling that continued for about a year.
Jane follows her doctor- and nutritionist-prescribed diabetes regimen religiously. However, over the last year, she has experienced continual problems with her blood glucose levels, and the most aggravating side effect of diabetes at this time is blurred vision. She has had several occasions in which her “distance” vision was slightly blurry and she drove her company van to the work sites; she has had several near misses in the last six months while driving but no citations or accidents. Her “close” vision seems unaffected. Six months ago she averaged one blurred vision issue every three weeks; two months ago the frequency of blurred vision increased to once every two weeks. Her blurred vision usually lasts one day. Thus far, Jane has been able to keep up with her clients’ needs by juggling her schedule, but the increased frequency of blurred vision is making it difficult. Although her doctors have not restricted Jane’s driving, they have suggested that she have someone drive her at night as the glare of headlights magnifies the blurriness of her vision.
Jane informs ABC of the nature of her problem and assures the company that she is not taking unnecessary risks when driving with slightly blurred vision and that her “near” vision is excellent. ABC is concerned that Jane is reaching the point that she can no longer realistically perform her job because of the required driving, but it knows that she really doesn’t want a different job. Jane believes she can perform the engineer’s job for the moment but would like an accommodation of an “as-needed” driver until the doctors are able to find the right drug(s) and dosage(s) to stabilize her diabetes and its side effects. ABC doesn’t believe the “as-needed” driver is a viable option because of the cost of paying someone to essentially be “on call” 24 hours a day, seven days a week. ABC is willing to create a special area consultant position that pays less but would allow Jane to do 85% of her work from home. Alternatively, a documenter vacancy has not been filled—It’s a work-from-home position that reports to the area consultant and essentially writes up the consultant’s summary report from each consulting visit. Although ABC values Jane’s contributions, it is concerned with the liability and ethics of having Jane continue to drive and is willing to terminate her if her blurred vision is not resolved within the next three months.
ABC has asked your consulting firm to explain ABC’s HR/legal options and possible ethical obligations and to make your recommendations. You are free to organize your report in a way that you think will work best for your client. The report should follow APA format, and the body of your report should be no longer than 10 double-spaced pages (make sure there is no additional spacing before or after paragraphs). The title page and references do not count toward the 10-page maximum.
NOTE: As consultants you know that your report will be read by some people who have little or no knowledge of HR and employment law, so you’ll need to decide which concepts need to be explained and which terms need to be defined.
Where do I start?
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There's a whole lot of unnecessary background information provided in the hypothetical scenario included in the student's question. That said, the underlying issue involves a series of laws known collectively as the Americans with Disabilities Act of 1990 (ADA) [Public Law 101-336]. The intent of this Act was to prohibit discrimination against individuals on the basis of physical and mental disabilities. As with many public laws, however, the provisions of the ADA are subject to interpretation, and a slew of decisions by the U.S. Supreme Court over the years has done little to eliminate the uncertainties that remain with respect to the ADA's application.
The key provisions of the ADA that apply to the scenario described involve the concept of "reasonable accommodations." In other words, employers, businesses and public spaces are required under the law to make every reasonable effort to create an environment friendly to those with disabilities, including structural modifications to accommodate special equipment, such as wheelchairs and ergonomically-designed office equipment. Title 42, United States Code, Chapter 126 (Subchapter IV: Miscellaneous Provisions) of the ADA includes the following provision:
". . .reasonable modifications in policies, practices, or procedures shall be required, unless an entity can demonstrate that making such modifications in policies, practices, or procedures, including academic requirements in postsecondary education, would fundamentally alter the nature of the goods, services, facilities, privileges, advantages, or accommodations involved."
What this means is that Able-Bodied Company (ABC) seriously needs to hold a meeting with its legal department or with an outside law firm for the purpose of discussing Jane's situation. The corporate officials who run ABC have to calculate the expenses associated with a potential civil suit filed by Jane against the costs of hiring her a driver. Whether the company has made sufficient effort, in the eyes of a potential jury or judge, to accommodate Jane by offering attractive options that would allow her to remain with the company but in a modified capacity would have to be determined. It is not, however, a forgone conclusion that Jane would prevail in a courtroom. In U.S. Airways, Inc. v. Barnett, a fired employee of U.S. Airways sued for wrongful termination under the provisions of the ADA. The U.S. Supreme Court, in its ruling on the case, determined that the corporation was not required, under the ADA, to violate its own personnel policy -- in this case, a seniority system that deprived the disabled employee of an alternative position with the company from the one he held at the time he was injured -- in order to accommodate the special needs of the employee. The essential question involved an assessment of whether policies or practices designed to accommodate the disabled employee in question -- in the student's case, Jane -- imposed "undue hardship" on the ability of the company to operate. And, herein lies an added dimension to the exercise: defining "undue hardship." The entirety of the U.S. Code, the totality of federal laws, is fraught with instances of vague phrases such as "reasonable accommodation" and "undue hardship" because the lawyers on the staff of the Legislative Branch of government are routinely in the awkward position of having to advance political agendas while both monitoring for potential loopholes and facilitating the maneuvering through such loopholes when warranted. In other words, try and avoid the 'law of unintended consequences.' The old adage that "the road to Hell is paved with good intentions" is regularly invoked in the halls of Congress, and nowhere were intentions more benign than in the drafting of the Americans with Disabilities Act.
Anyway, all of this is to suggest that ABC has a solid legal basis to transfer Jane to one of the alternative positions mentioned in the scenario, but that it is risking a protracted and costly legal battle should it deny Jane's request for a driver. It has made good-faith efforts at accommodating her disability without unduly disrupting company operations. Hiring a driver for the sole purpose of accommodating Jane's disability may very well lie outside the parameters of Congress' intent with respect to the ADA. Providing specially-modified office furniture is one thing; assuming the expenses associated with the hiring of another employee -- the driver -- is something else, especially given the issues associated with another employee, such as health insurance, vacation pay, etc. If ABC calculates that it can outlast and outspend Jane, who might be able to avail herself of pro bono legal representation or of a law firm willing to work on a contingency basis, then it may be worth its while to do what it believes it needs to do, and that is provide Jane with a position she can perform without the need of another employee to chauffier her around.
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