A common issue under the Americans with Disabilities Act concerns asking for and responding to a request for a reasonable accommodation.
It is important for employers to understand their obligations in responding to such a request because under the ADA unlawful discrimination specifically includes “not making reasonable accommodations [for a] qualified individual with a disability…” 42 USC 12112(b)(5)(A).
Making and Responding to a Request for a Reasonable Accommodation
- An employee generally has the initial burden of putting the employer on notice that deficiencies in his or her performance are related to an ADA disability, proposing an accommodation, and showing that that accommodation is objectively reasonable. But this general rule has exceptions: Employers have been required to initiate the interactive process even if the employee does not request accommodation where the employee’s disability and its adverse impact on job performance are obvious. Brady v Wal-Mart Stores, Inc (2008) (Employee had cerebral palsy, which manifested itself in noticeably slower walking and speech).
- The EEOC Enforcement Guidance on Reasonable Accommodation and Undue Hardship provides that a: ”… modification or adjustment is ‘reasonable’ if it ‘seems reasonable on its face, i.e., ordinarily or in the run of cases;’ this means it is ‘reasonable’ if it appears to be ‘feasible’ or ‘plausible.’ An accommodation also must be effective in meeting the needs of the individual.”
- To determine the appropriate reasonable accommodation it may be necessary for the employer and employee to engage in an informal, interactive process. 29 C.F.R. § 1630.2(o)(3) (2010). The EEOC Regulations provide that this process should focus on:
- Analyzing the particular job involved and determine its purpose and essential functions;
- Consulting with the employee with a disability to determine the precise job-related limitations imposed by the employee’s disability and how those limitations could be overcome with a reasonable accommodation;
- Identifying potential accommodations and assessing the effectiveness each would have in enabling the employee to perform the essential functions of the position; and
- Considering the preference of the employee to be accommodated and selecting and implement the accommodation that is most appropriate for both the employee and the employer.
- If the plaintiff establishes that a reasonable accommodation is possible, the employer bears the burden of proving how the accommodation would cause an undue hardship on the operation of the business. 42 U.S.C. § 12112(b)(5)(A). The ADA defines “undue hardship” to mean ”an action requiring significant difficulty or expense, when considered in light of the [following] factors”:
- The nature and cost of the accommodation needed;
- The overall financial resources of the facility or facilities involved in the provision of the reasonable accommodation; the number of persons employed at such facility; the effect on expenses and resources, or the impact otherwise of such accommodation upon the operation of the facility;
- The overall financial resources of the covered entity; the overall size of the business of a covered entity with respect to the number of its employees; the number, type, and location of its facilities; and
- The type of operation or operations of the covered entity, including the composition, structure, and functions of the workforce of such entity; the geographic separateness, administrative, or fiscal relationship of the facility or facilities in question to the covered entity. 42 U.S.C. § 12111(10).
- Employers should carefully and critically assess whether an accommodation is an “undue hardship because a court will often engage in an individualized inquiry to ensure that the employer’s justifications “reflect a well-informed judgment grounded in a careful and open-minded weighing of the risks and alternatives . . .”. Johnson v. City of Pontiac, (E.D. Mich. 2007). Also, courts will reject an employer’s “undue hardship” argument if it is not supported with specific facts. See Smith v. Henderson, (6th Cir. 2004) (employer failed to set forth “specific facts indisputably demonstrating that … the accommodation would have resulted in ‘significant difficulty or expense.”).
While these topics will be an important starting point for employees and employers to meaningfully participate in the interactive accommodation process under the ADA, any such issues should be addressed with competent legal counsel.