When One Employee’s Accommodation Collides with Another’s

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I read a fascinating article in last week’s New York Times about accommodating an employee’s disability. Both federal and state law require an employer to provide reasonable accommodations to a qualified disabled employee or job applicant. But what if the accommodation needs of one employee collide with the needs of another?

The article discusses the case of Emily Kysel, who has a rare but potentially fatal allergy to paprika. Her allergies are so severe that she once had an attack because the tiny snack bar in her office building began serving paprika-laden pulled pork. One day at work, a co-worker was eating buffalo wings at her desk, and the wings contained paprika. Ms. Kysel’s allergic reaction was so severe that she had to go home early.

Fearing that Ms. Kysel would suffer a fatal attack from inhaling paprika, her family chipped in to buy her an allergy-detection dog, which works much like a narcotics-sniffing dog. After she had extensive talks with her employer, the City of Indianapolis, officials gave her permission to take the dog to work. The golden retriever, named Penny, cost her family $10,000 — it jumps up on Ms. Kysel whenever it detects paprika.

Here is where it gets interesting…when Ms. Kysel took the dog to work, a co-worker suffered an asthma attack because she is allergic to dogs. That same day, Ms. Kysel’s supervisor told her that she she could no longer take the dog to work, or if she felt she could not report to work without Penny, she could go on indefinite unpaid leave. As of the writing of the New York Times article, Ms. Kysel had filed a complaint with the EEOC for disability discrimination, but had not returned to work.

Here is the rub…what does an employer do when accommodating one employee makes it impossible to accommodate another? The article makes no mention of why the two employees could not work in separate work areas, but we have to assume that they were part of a team and that the employer’s business necessities required them to work together. If both individuals are disabled, both must be accommodated.

You can’t choose who to accommodate by seniority, or by whose disability is more “serious” than the other (how could you even begin to do so?). Does it matter who asks for an accommodation first? Does that person’s request trump the other employee’s request?

There is no easy answer and whatever path a company takes, it is sure to be setting itself up for a disability discrimination complaint. In that case, it would be imperative that the company have solid documentation showing that it went through the interactive process with the employee and explored all options for an accommodation before arriving at an impasse. It is important to remember that just because no accommodation was found doesn’t mean that discrimination took place.

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