The Reasonable Accommodation Trap
Many employers mishandle workplace disability issues and, acting out of what they believe to be “common sense,” become victims of savvy employment lawyers who exploit the nuances of disability law. Here are common mistakes to avoid.
Failure to recognize that an accommodation request was made. A best practice is to have a policy that requires employees to consult with your human resources department, or upper management – rather than supervisors – if they need an accommodation.
Requesting too much medical information in order to provide an accommodation. Both federal and state laws restrict an employer’s ability to make disability-related inquiries.
Denying an accommodation request because the employee did not provide a solution. Even if an employee does not offer a solution, the employer must still engage in the interactive process to determine if a reasonable accommodation can be made.
Ending the accommodation dialogue with the employee because no reasonable accommodation would allow the employee to perform the job’s essential functions. If an employee cannot perform the essential functions of the job, the employer should see if other accommodations can be made such as reassigning the employee to an open position, telecommuting, allowing the employee to work part time or providing the employee with an unpaid leave of absence. Even if the request is unreasonable, the employer must engage in interactive dialogue.
Claim the “we have never done that before” defense. Just because it has never been done before does not mean that it cannot be a reasonable accommodation. Telecommunication is one example that is becoming more popular as a “reasonable accommodation.”
Failing to document the interactive process that the employee/employer engaged in. Often, no documentation means no defense once the employee contacts an attorney familiar with the law.
Believing that allowing the accommodation will be an “undue hardship.” This legal defense is hard to prove and is rarely recognized. For all practical purposes, it is unavailable.
If the reasonable accommodation obligation is ignored, serious liability can be incurred. Most employers are no match for wily plaintiffs’ lawyers having a high degree of familiarity with the nuances of the law. Note, however, employers are NOT required to provide indefinite leaves of absence as a reasonable accommodation.
