Litigation under the Americans with Disabilities Act (ADA) has been on the rise in recent years and will likely continue to increase. One area of ADA compliance fueling the increase is the duty to reasonably accommodate employees’ disabilities. While most employers are aware they have a duty to accommodate the disabilities of qualified individuals, many struggle with the specifics of when an accommodation is required and how the accommodation process should work from a legal perspective. To help you avoid ending up on the wrong side of an ADA lawsuit, here is a list of the five most common pitfalls employers face when dealing with the ADA’s reasonable accommodation requirements. 
No. 1: failing to recognize a reasonable accommodation request
One of the most difficult aspects of the duty to accommodate is knowing when you are being asked for an accommodation. The 2008 ADA Amendments Act (ADAAA) greatly expanded what constitutes a disability. As a result, many more physical and mental limitations may now qualify as legally protected disabilities. Because of the expansion of the types of conditions that may qualify for protection, many employers simply fail to recognize that they are being asked for an accommodation. So how do you know if an employee is asking you to provide an accommodation?
As a general rule, anytime an employee tells you that she needs an adjustment or a change for a reason that is related to a medical condition, she is asking for a reasonable accommodation. She does not have to mention the ADA, the request does not necessarily have to come directly from the employee, and the request does not have to be in writing. The broad standard for what can constitute an accommodation makes it very difficult for managers, especially if they have not been trained on the ADA, to recognize reasonable accommodation requests. It is also very difficult to prove an employee did not request an accommodation if you have to litigate the issue.
To protect yourself, train low-level managers who deal with things like employee attendance and tardiness, scheduling, and work conditions on how to spot a reasonable accommodation request and when to get HR involved. It is also a good idea to have a reasonable accommodation policy that directs employees to send accommodation requests to HR representatives, who have more experience with the ADA. While an employee making an accommodation request to a low-level manager may put you on notice even if you have a policy, noncompliance with the policy helps show that the employee did not effectively communicate his need for an accommodation.
No. 2: failing to consider leave an accommodation
By now, most employers are aware that leave can be required as a reasonable accommodation, even if the leave is above and beyond the requirements of the Family and Medical Leave Act (FMLA). However, problems arise when employers fail to anticipate when additional leave may be required. For example, many employers maintain no-fault attendance policies or other rules that restrict the availability of leave to employees and apply the policies to deny leave. The Equal Employment Opportunity Commission (EEOC) has been clear that one of the explicit purposes of the ADA is “to change the way things are customarily done.” In other words, the ADA requires you to break your own rules (e.g., no-fault attendance policies or policies denying leave until six months of service) if an employee requests leave as an accommodation.
As another example, some employers maintain 100 percent healed policies, which require employees to be free of medical restrictions before returning to work after an injury. Again, the ADA may require you to break your own policies if an employee can return to work with a reasonable accommodation, even if she is not 100 percent healed. The bottom line is, your policies will not be a defense against an allegation that you failed to accommodate an employee’s known disability.
In May 2016, the EEOC issued guidance on providing leave as an accommodation. It is available at www.eeoc.gov/eeoc/publications/ada-leave.cfm, and it gives good examples of when leave may be required. Become familiar with it to avoid violating your duty to provide leave as a reasonable accommodation.
No. 3: failing to recognize mental disabilities
One of the most difficult areas of ADA compliance is mental disabilities. Employees often do not initially disclose mental illnesses to their employer. Once the employment relationship begins, an employer can ask about a mental disability only if there is objective evidence that an employee has a condition that could interfere with her work or present a threat. Moreover, mental disabilities often affect life activities such as concentration and sleep, which are much less obvious than physical disabilities that might affect an employee’s ability to walk or see. That makes it extremely difficult to determine that an employee may have a mental disability.
It can be very hard for employers to recognize when an employee with a mental disability is requesting an accommodation. To make a legally valid request for an accommodation, an employee has to do little more than state a need for a change to his work environment for a reason related to a disability. An employee who complains of stress or irritability or has poor attendance and asks for a modification to his work environment may seem to be simply complaining about run-of-the-mill issues. But he may actually be requesting an accommodation.
There is no easy answer to this issue. Employers must be aware of employees’ mental disabilities and accommodate them in the same way they accommodate employees’ physical disabilities. If an employee has a known disability, you must be sensitive to accommodation requests that might otherwise seem unreasonable (e.g., moving an employee who is having trouble concentrating because of a disability to a more secluded office or allowing an employee to record a meeting). If you suspect an employee’s performance issues are being caused by a mental disability, take the time to document the performance problems prior to asking questions about the disability.
No. 4: failing to engage in and document the interactive process
The ultimate goal of the ADA’s requirement that parties engage in the interactive process is a discussion of what accommodations would allow a disabled employee to perform the essential functions of his job. The employer and employee are supposed to sit down and talk with an eye toward resolving any performance issues through an accommodation before the need for discipline. There are no rigid guidelines for the process, and employers have the discretion to engage in the process in a manner that works for them. The basic idea is for the employer and employee to exchange proposed reasonable accommodations that will allow the employee to perform the essential functions of the job at issue. Employers struggle with the concept because they fail to appreciate the need to engage in the interactive process and document it. So how do you fix those problems?
First, if you think an employee is asking for an accommodation, engage in the interactive process. There is no real downside to discussing a potential accommodation with an employee, even if you are not legally required to provide an accommodation. If an employee is struggling to meet a job requirement, ask why. If he is struggling because of a medical condition, you may have to discuss accommodations and continue the interactive process. If his problems are unrelated to a medical condition, you are in the clear. A simple discussion can be conducted during a disciplinary meeting and should be done with a witness in the room.
Second, document the interactive process. Documentation of the interactive process is much like an investigation file in a sexual harassment claim—it is part of the primary evidence you will use to defend your company during litigation. A simple note of an employee’s reasons for failing to perform the duties of her position or a simple statement that no accommodation was requested can be immensely helpful in showing you did not have notice of her need for an accommodation. Similarly, if you know about an employee’s need for an accommodation, you must document what accommodations she requested and what alternatives you offered. Remember that engaging in the interactive process and being able to prove that you engaged in the process are two different things.
No. 5: failing to consider alternatives
If an employee is disabled and asks for an accommodation, you must provide a reasonable accommodation absent an undue hardship. Many employers fail to appreciate how difficult it can be to prove an undue hardship. The EEOC requires an employer to consider (1) the nature and cost of the accommodation, (2) the company’s resources and the effect of the accommodation on company expenses, and (3) the overall impact on the operation of the company. General fears about the effect on employee morale or increased costs are likely not sufficient to show an undue hardship. Moreover, most employers often assume that the cost of an accommodation will cause an undue hardship without actually researching the issue.
Also, many employers forget that even if they establish that a particular accommodation request would result in an undue hardship, they may still be required to provide an alternative accommodation that does not impose an undue hardship. Just because one accommodation is unworkable does not mean you have fulfilled your duty.
The bottom line is, anytime an employee with a known disability requests an accommodation and you intend to reject the request, proceed with extreme caution and seek the advice of counsel. Undue hardship is a difficult defense to prove, and employers often fail to fully consider the risks of denying an employee’s request for an accommodation.
Bottom line
The duty to reasonably accommodate a disabled employee is going to continue to cause employers problems and generate litigation in the coming years. An employer’s duty is necessarily somewhat vague 
and undefined, which makes it extremely difficult to know when you are in compliance. Smart employers will make sure to train their supervisors and managers on spotting requests for accommodation, the basics of the interactive process, and the extent of the duty to accommodate and will consult with their attorney when accommodation issues arise.
Brent E. Siler is an attorney in Butler Snow LLP‘s labor and employment practice group in the firm’s Memphis office. He may be reached at brent.siler@butlersnow.com.
Need to learn more? Join us at AEIS 2017: Advanced Employment Issues Symposium where Stacie Caraway, Esq., Miller & Martin PLLC and Susan Fentin, Esq., Skoler, Abbott & Presser, P.C. will present Absence Management in the Compliance ‘Bermuda Triangle’: FMLA’s Intersection with Disability Accommodation, Workers’ Compensation, and Paid Time Off. This session will provide a comprehensive look into how to conquer the most confusing leave-related conundrums under leave-protection laws. You’ll get legal insight into the leave and benefit traps that employers of all sizes need to avoid so you can develop sound administrative procedures that withstand scrutiny if called into question by regulators, a judge, or a jury. For more information, click here.