by Kara E. Shea
Did you know the fastest rising category of claims filed with the Equal Employment Opportunity Commission (EEOC) is claims based on disability discrimination and/or failure to accommodate disabled employees? This isn’t surprising given that, under the expanded Americans with Disabilities Act (ADA), virtually any nonminor/nontransitory impairment may be considered a qualifying disability. 
So the crucial question is, once you have determined that an employee or job applicant has a disability, to what lengths must you go to provide a reasonable accommodation? Do you have to provide the specific accommodation requested by the employee? What is an undue hardship? This month, we provide some pointers to help employers navigate the process of determining how or whether to provide an accommodation for an individual with a disability.
Affirmative obligation to accommodate
Once a qualified disabled employee requests an accommodation (or, if the need for accommodation is apparent, even without a request), you have an affirmative obligation to engage in a discussion with her regarding the issue. This discussion is called the “interactive process.” The courts in some circuits have ruled that failure to engage in the interactive process, in and of itself, creates an independent basis for liability.
In addition, the failure to provide reasonable accommodation following an interactive process will give rise to an independent claim under the ADA. That’s true even if you have no intent to discriminate―failure-to- accommodate claims are separate from discrimination claims, and for such claims, the employee doesn’t have to demonstrate any adverse action other than the failure to accommodate itself.
And be mindful that an employee need not use “magic words” to request an accommodation under the ADA. For instance, an employee who tells you he can’t get to work on time because of a medical condition (or because of effects of medication related to a medical condition) may just have requested an accommodation under the ADA.
The good news is, the ADA provides an economic incentive―by way of an affirmative defense―for employers to attempt to accommodate an employee. This means that if you are sued for an ADA violation, certain damages aren’t available to the employee if you can demonstrate that you made good-faith efforts to work with her to identify and make reasonable accommodations.
The ‘interactive process’
The interactive process is basically a discussion with an employee to identify possible accommodations for a disability. This discussion sometimes includes an exchange of information, such as information from the employee’s doctor relating to the employee’s diagnosis, limitations, and/or prognosis. The employee is required to provide this information and otherwise cooperate in the interactive process. In turn, the employer may provide information about options available to the employee.
Although these discussions may occur on a somewhat informal basis, they should be scrupulously documented. Being able to provide documentation of your efforts to work with an employee may save the day if you are later sued for failure to accommodate under the ADA. At the end of the day, you need not provide the exact accommodation requested by the employee― only an accommodation that is reasonable (and that enables the employee to perform the essential functions of the job).
You need not provide an accommodation that places an “undue hardship” on the organization. However, “undue hardship” will be judged by an objective standard, so you must be able to prove exactly how the accommodation will affect your bottom line. Factors that are taken into account in the undue hardship analysis include the nature and cost of the accommodation needed, the overall financial resources of the business, the number of persons employed by the business, and the effect on the expenses and resources of the business. Less tangible factors such as employee morale usually won’t be enough to support a hardship defense.
Examples of accommodations
Generally speaking, a reasonable accommodation is any reasonable change to help a person with a disability be on equal footing with nondisabled individuals in similar circumstances. The regulations interpreting the ADA provide three types of reasonable accommodations:
- Reasonable modifications to a job―such as modifications to the work environment or circumstances under which the job is performed―that will allow an employee with a disability to perform the essential job functions. For example, if an employee has a hearing problem and has difficulty comprehending spoken instructions, providing the instructions in writing would be a reasonable accommodation.
- Modifications to a hiring process to help an applicant with a disability participate in the application process in an equal manner to other applicants. For example, an employer that gives written examinations to applicants as part of the hiring process may need to provide an exam in Braille for an applicant who is blind.
- Accommodations that allow employees with disabilities to enjoy equal benefits and privileges of employment that nondisabled employees have. For example, if an employer provides a break room to employees but the doorway to the break room isn’t wide enough for an employee in a wheelchair to fit through, the employer will need to make modifications to the entryway, relocate the break room to an accessible area, or create comparable facilities that allow the employee to take breaks with coworkers.
Specific examples of reasonable accommodations also include allowing an employee to take paid leaves of absence, such as sick leave or vacation leave, or allowing unpaid leave if no paid leave is available. Another possible accommodation is restructuring the job by moving nonessential functions to another position. For example, an employer may have two jobs, each of which has essential functions plus a number of marginal functions. As an accommodation, the employer may redistribute the marginal functions so that all the marginal functions the disabled person can perform are in one position.
As always, if you feel you have obligations to accommodate an employee under the ADA but are unsure how to comply, it’s best to seek the advice of an experienced employment attorney.
Kara Shea is an attorney with Butler Snow, practicing in the firm’s Nashville, Tennessee, office. She may be contacted at kara.shea@butlersnow.com.