By Kayla A. Cook, Esq.

This week the West Virginia Supreme Court of Appeals issued an important decision in Burns v. W. Va. Dep. Ed.¹ that helps employers determine when their duty to accommodate an employee is triggered.

It is well established that to state a claim for breach of the duty of reasonable accommodation under the West Virginia Human Rights Act, W. Va. Code §5-11-9 (1992), the following elements must be met: (1) the plaintiff is a qualified person with a disability; (2) the employer was aware of the plaintiff's disability; (3) the plaintiff required an accommodation in order to perform the essential functions of a job; (4) a reasonable accommodation exists that meets the plaintiff's need; (5) the employer knew or should have known of the plaintiff's need and of the accommodation; and (6) the employer failed to provide the accommodation.² However, there has been little guidance on the "requirement" prong of the third element and many employers are left scratching their heads wondering if they are required to make an accommodation for an employee.

The Burns opinion authored by Chief Justice Walker references a Seventh Circuit Court of Appeals case and holds that there must be a connection between the need for accommodation and the employee's ability to perform the essential function of his/her job.³ Thus, to sustain a failure to accommodate claim, an employee must first establish that he/she required an accommodation in order to perform the essential functions of the job. If an employee's limitations do not affect his or her ability to perform essential job functions, an employer does not have the duty to accommodate.

In Burns, an employee with a respiratory illness used accrued leave to attend breathing therapy appointments twice a week. The essential functions of her job included research, writing, talking on the phone, and editing. The employee argued that her employer failed to provide her reasonable accommodations when the employer refused to allow her to work weekends from home, but instead required her to take paid leave to attend her therapy appointments.

The Supreme Court held that no accommodation was required for the employee to perform the essential functions of her job and as a result her employer did not have a duty to accommodate her by permitting her to work from home. The Court explained, "An employer must offer an employee with a qualifying disability a reasonable accommodation that enables the employee to perform the essential functions of his job. Depending on the particular circumstances of each case, telework or another work-from-home arrangement may be a reasonable accommodation. But, an employer is not required to offer the exact accommodation requested by the employee. Rather, it must offer one that is effective at addressing whatever limitation precludes the employee from performing the essential functions of his or her job, provided that a reasonable accommodation exists."⁴

While this new decision will help employers determine when an accommodation may be necessary and what type of accommodation to offer, the West Virginia Human Rights Act and Americans with Disabilities Act (ADA) remain riddled with protections, requirements, and exceptions that affect employers from all industries. If you have any questions related to an accommodation for an employee, contact a member of the Bowles Rice Labor and Employment Team.

¹No. 16-C-319 (W. Va. Nov. 20, 2019).
²Syllabus Point 2, Skaggs v. Elk Run Coal Co., 198 W. Va. 51, 479 S. E. 2d 561 (1996).
³Brumfield v. City of Chicago, 735 F. 3d. 619, 632-33 (7th Cir. 2013).
⁴Burns v. W. Va. Dep. Ed. No. 16-C-319 (W. Va. Nov. 20, 2019).

About the Author:
	Kayla A. Cook (304) 285-2565 Kayla A. Cook is an attorney practicing in the Morgantown, West Virginia office of regional law firm Bowles Rice. She is a member of the firm's Education and Labor and Employment groups.

For more Information:
If you have questions or would like additional information, please contact any member of the Bowles Rice Labor and Employment Law Group.