In recent years, the EEOC has put an emphasis on reasonable accommodations under the Americans with Disabilities Act (“ADA”) and its amendments, which has led to increase in failure to accommodate claims under the ADA. Set forth below are five practical tips to remember when a disabled employee is entitled to a reasonable accommodation.
1. Recognize a Request and Immediately Engage in the Interactive Process. Under the ADA, employers are required to engage in the interactive process when an employee requests a reasonable accommodation. In fact, part of an employee’s claim that an employer failed to accommodate the employee is a claim that the employer failed to engage in the interactive process. The first step of the interactive process is recognizing that a request has been made. Generally, it is the employee’s duty to make a reasonable accommodation request. The employee is not required to use any magic buzzwords. It is important for employers to recognize when an employee has made such a request and important to train supervisors and managers in recognizing such a request. The employee only needs to ask for some change or adjustment in the workplace and link that request to his or her disability. The employer’s response to the request must be “expeditious”, and a delay in responding may be a cause of action for the employee. After a request has been made, the employer has an obligation to engage in the interactive process, which requires the following steps: (i) recognize an accommodation request; (ii) gather information; (iii) explore accommodation options; (iv) choose a reasonable accommodation; (v) implement the reasonable accommodation; and (vi) monitor the reasonable accommodation.
2. Let the Employee Do the Talking. The best source of information about a reasonable accommodation request will likely come from the employee since he/she is the one requiring the accommodation. A good tool to use during the interactive process is a questionnaire for the employee to fill out. The employee should be asked to describe his or her impairment, identify his or her limitations, and provide suggestions for accommodations. Additionally, seriously considering the employee’s preference may be the best choice in maintaining a happy workforce and preventing a later claim, as long as such a request is reasonable. For example, a federal appeals court recently found that an employee was denied a reasonable accommodation where the employer rejected the employee’s choice of telecommuting to work, despite the fact that the employer offered other options to accommodate the employee. For more information on this case, see “Do I Really Need To Come To Work? New Frontiers In ADA Accommodation”. As an update on that case, on August 29, 2014, the United States Court of Appeals for the Sixth Circuit voted to rehear the case en banc. This means that the previous ruling by the court has been vacated and the case will be heard again by the full court. Stay tuned for an update when the Sixth Circuit issues its new decision.
3. Don’t Forget About Reassignment. If an employee has permanent restrictions and can no longer perform the essential functions of his or her job, an employer is still required to engage in the interactive process and consider job reassignment. If there is no vacant equivalent position for which the employee is qualified, the employee may be reassigned to another job with less pay and benefits as an accommodation. Don’t forget about the FMLA, however, which requires that an employee be restored to his or her original job or to an equivalent job with equivalent pay, benefits, and other terms and conditions of employment upon return from FMLA leave. Remember, employers are not required to create a new job, move another employee, promote the employee or violate other employees’ rights under a collective bargaining agreement or other employment agreement when considering reassignment as an accommodation. Additionally, in the Eighth Circuit, which includes Nebraska, Minnesota, Iowa, Missouri and North and South Dakota, if there is a vacant position, the employer may follow company policy by choosing the most qualified candidate for that position.
4. Don’t Get Caught in the Indefinite Leave Trap. In the Eighth Circuit, an employer may deny a request for leave if the leave is indefinite and the employee cannot provide a return date or a timeframe for when they will return. The EEOC, on the other hand, requires that an employer prove an undue hardship before denying an indefinite leave accommodation request. These types of situations should always be evaluated closely by both the employer and counsel prior to terminating the employee.
5. Tread Lightly if using a Maximum Leave Policy. Many employers have a maximum leave policy and terminate employees for exceeding the maximum amount of leave available under the policy (for instance if an employee takes a medical leave of absence and cannot return to work after six months they are automatically terminated). The EEOC has taken the position that these policies are a per se violation of the ADA. For more information on the EEOC’s position, see “EEOC And Inflexible Leave Of Absence Policies: A Hot Button Issue For 2013”. However, a federal appeals court recently rejected the EEOC’s position and concluded that these types of policies are not inherently discriminatory, but rather protect the rights of disabled employees. For more information on that decision, see “Maximum Leave Policy Found To Be Fair And Lawful” . Because of the EEOC’s position and the unknown position of other courts, employers should still be wary about such policies. Employers should still engage in the interactive process and discuss the possibility of additional leave with a disabled employee in the event the employee reaches the maximum leave under such a policy rather than enforcing automatic termination under such a policy.