When an employee requests a reasonable accommodation to disability, or when an employer is otherwise put on notice of that an employee needs a reasonable accommodation to disability, that means that the employer must consider whether a reasonable accommodation will enable the employee to perform the essential functions of his or her job.
Next Steps Under the Americans With Disabilities Act (ADA)
The employer’s obligation in this regard was recently highlighted in a case settled by the Equal Employment Opportunity Commission (EEOC). Pursuant to the settlement, Kindred at Home, a provider of home health services including nursing and rehabilitation assistance, will pay an employee $160,000 to settle the disability discrimination lawsuit filed by the EEOC on the employee’s behalf. As part of the settlement, Kindred also agreed to terms including regular reporting, monitoring, annual training, distribution of ADA policies, and notice posting.
The EEOC’s suit alleged that Kindred learned that one of its employees suffered from a medical condition which impacted joints of both feet. The employee initially asked to telecommute for three weeks as an accommodation for her disability and in accordance with her doctor’s recommendation to stay off her feet. Kindred originally allowed her to telework for a week but then reversed its decision and unilaterally placed her on unpaid leave without benefits for four months, despite the fact she could perform the essential functions of her job. Marcus Keegan, regional attorney for the EEOC's Atlanta District Office, commented on the case, stating that “an employer should accommodate an employee who can perform the essential functions of the position with a limited period of telework if it does not pose an undue hardship.”
Under the law, failure to provide “reasonable accommodation” to the known limitations of a disability counts as discrimination. For an employer to be liable for failing to provide a reasonable accommodation, an employee must first request an accommodation unless the disability, and its corresponding need for accommodation, is obvious or otherwise known to the employer.
Interactive Process – The Employer’s Response
When this occurs, this triggers the employer’s duty to engage in an “interactive process” with the employee. This means that both the employer and employee must work together in an informal, flexible interactive process to identify the precise limitations resulting from the employee’s disability and whether reasonable accommodations exist that could overcome those limitations. This almost always requires an individualized assessment of the employee’s needs and abilities.
Employees should be aware that the duty to engage in an interactive process is a mutual duty, and an employee's unwillingness to cooperate in the interactive process prevents the employee from suing their employer for failure to accommodate the employee’s disability.
Employees should also remember that they are not entitled to any accommodation. Rather, a disabled employee is entitled to a reasonable accommodation. Here, the accommodation must enable the employee to perform the relevant job’s essential functions. Moreover, the accommodation must also be reasonable, meaning that it must be feasible for the employer and cannot impose upon the employer an undue hardship. An accommodation imposes undue hardship, and is therefore unreasonable, if it requires significant difficulty or expense under the circumstances.
If you think that your employer has discriminated against you based on your disability, you should consult an experienced attorney. Please call us at (603) 288-1403 to see if we can help or fill out our online contact form for a free consultation.