Accommodating Employees Generally

A “reasonable accommodation” is a modification to the way a job is performed that allows a person with a disability to complete his or her job. 

Under the Americans with Disabilities Act (the “ADA”), employers must provide reasonable accommodations to employees with disabilities.  Similarly, under the Pregnant Workers Fairness Act (the “PWFA”), employers are required to provide reasonable accommodations for employees with limitations related to pregnancy, childbirth, and related medical conditions.

However, employers are not required to make reasonable accommodations if doing so would create an “undue hardship” on the business.  Whether an undue hardship exists is determined on a case-by-case basis and can depend on the nature and cost of the accommodation in relation to the employer’s size and resources.  Courts generally look to several relevant factors in determining whether an accommodation would impose an undue hardship, including:

• The nature and cost of the accommodation;
• The employer’s financial resources;
• The number of persons employed in the workplace; and
• The accommodation’s effect on the employer’s expenses/resources.

Before simply denying an employee’s request for accommodation, though, employers must engage in an “interactive process.”  In other words, even if the employee’s requested accommodation is unreasonable—or even if it would present an undue hardship—the employer is required to engage in an open conversation with the employee to determine whether an alternative accommodation can be identified.

Service Animals in Restaurants

The ADA is broken into several parts. Title I of the ADA requires employers, as noted above, to make certain accommodations for their employees. Title III, on the other hand, requires places of public accommodation to be designed in compliance with accessibility standards. Title III of the ADA explicitly discusses the concept of service animals: it defines service animals as “dogs that are individually trained to do work or perform tasks for people with disabilities,” and members of the public who use a service animal are generally permitted to take their animal into areas of a business where the public is permitted to go.

Whether a disabled employee is entitled to an animal in the workplace, however, presents a more challenging issue.  Unlike Title III, Title I of the ADA (which deals with accommodations for employees) does not expressly discuss service animals.  Legal guidance on the issue is very limited, and the guidance that does exist does not present a one-size-fits-all solution.  It, instead, acknowledges that an employees’ entitlement to accommodation depends on fact-specific circumstances. The use of service animals by restaurant employees thus depends upon whether the request is reasonable and whether it presents an undue hardship on the employer.

In the restaurant setting, employers must be particularly concerned about the cleanliness of their business and the safety of their patrons and workers.  For these reasons, if one employee’s request for a service animal creates an allergy risk for others—and if an employer cannot modify the employee’s workspace to eliminate that risk—the employee might not be entitled to the accommodation.  Rather, the accommodation may be considered unreasonable and may impose an undue hardship on the employer.   

Obligations to New Mothers

Several laws offer protection to new/expecting mothers in the workplace. For example, Title VII of the Civil Rights Act of 1964 protects employees against discrimination and prejudice in the hiring and firing of employees on the basis of pregnancy; the ADA protects employees who suffer from pregnancy-related disabilities; and the PWFA builds on the ADA by protecting employees who have known limitations related to pregnancy and childbirth (which might include post-childbirth recovery, cesarean sections, changes in hormone levels, etc.).  Notably, the PUMP Act—which became law in December of last year—also requires employers to provide employees with an area (other than a bathroom) to express breast milk at work, which must be functional for pumping milk, shielded from view, free from intrusion, and available as needed.

The Ohio Department of Health (the “ODH”) has issued guidance specifically designed to help restaurant owners provide lactation accommodations to breastfeeding employees.  According to the ODH’s guidance, “[r]estaurants have found many creative solutions to accommodate breastfeeding employees,” and “[e]ven small restaurants and fast-food industries with limited space and rigid time schedules can make it work.”

Among other solutions, the ODH suggests that restaurants can effectively accommodate breastfeeding employees by creating a private space (with partitions/privacy screens) in an employee break area or by making an office area available (so long as the office is free from surveillance).

Balancing Employees’ Needs With Patrons’ Safety

While restaurant owners sometimes have obligations to accommodate disabled employees, they also have obligations to the public and to their patrons.  Sometimes, for example, an employee may have a health concern—like an infectious disease—that may prevent the employee from safely handling food and/or interacting with diners.

For this reason, restaurants should consider developing sick worker policies to help prevent the transmission of foodborne illness or communicable diseases. When employees are suffering from certain symptoms (e.g., diarrhea, vomiting, fever), an effective sick worker policy might require employees to self-report their illness to a supervisor and to stay home from work until the symptoms pass.

Although this article identifies a few legal issues that restaurant owners may encounter, it does not constitute legal advice, nor does it anticipate all legal questions that may arise in the workplace. Adequately accommodating employees requires careful compliance with state and federal laws, and employers are advised to seek legal counsel when they develop specific legal concerns.

To seek counsel from our Hospitality & Liquor Law practice group, please reach out to request a consultation or call us at 216-696-1422.

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Under Internal Revenue Code Section 274(n)(1), a deduction for any expense for food or beverages is generally limited to 50% of the amount that would otherwise be deductible.  However, the Consolidated Appropriations Act enacted in December 2020 allows a temporary exception to the limitation for amounts paid or incurred after December 31, 2020 and before January 1, 2023 for food and beverages provided by a restaurant.  Pursuant to the Act, the temporary exception allows a 100% deduction for food or beverages from restaurants.

Under the new guidance, “restaurants” include businesses that prepare and sell food or beverages to retail customers for immediate on-premises and/or off-premises consumption.  However, “restaurants” do not include businesses that primarily sell pre-packaged goods not for immediate consumption, such as grocery stores, convenience stores, specialty food stores, beer, wine or liquor stores, drug stores, newsstands, and vending machines or kiosks.

Additionally, the guidance explains that an employer may not treat as a restaurant any eating facility located on the employer’s business premises and used in furnishing meals excluded from an employee’s gross income, and certain employer-operated eating facilities, even if these facilities are operated by a third party under contract with the employer.

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