Reasonable accommodation requests are among the most challenging compliance issues for Human Resource professionals. Rarely are there easy answers in this area that assure success against a legal challenge.
As many of you know, the Americans with Disabilities Act (ADA) requires employers to provide reasonable accommodations to disabled employees, unless doing so would cause undue hardship to the business. Common accommodation requests include time off from work, modified working schedules, and changes to the work environment (seating, lighting, noise, etc.).
Unfortunately, the undue hardship test is not straight-forward and is based on a number of different factors. Many of the hardship considerations are set out in this EEOC Enforcement Guidance: Reasonable Accommodation and Undue Hardship Under the Americans with Disabilities Act. (For more information on the undue hardship test, I suggest reviewing the situational examples provided by the EEOC in the above link.)
While undue hardship analysis can be challenging, one aspect of ADA law is not as daunting. The EEOC and our courts make it clear that employers should engage in what is known as the “interactive process” when presented with an accommodation request. This is the first step in evaluating whether a workplace accommodation can and should be offered.
The process often involves a meeting or communication with the employee to review related medical documentation and discuss what the employer can and cannot do for the employee. Employers and employees are then expected to work together to try and come up with an accommodation plan that will work for both sides. Some interactive dialogue should almost always precede denying an accommodation request, and the process should be documented. Skipping this step can lead to liability for employers by opening the door to large damage awards.
A recent decision from the Massachusetts Commission Against Discrimination (MCAD) is a good reminder on how this process should work. In that case, an employee with a disabling medication condition requested, as an accommodation, that she not be required to work overtime. This was not granted, as the employer felt it was essential that the employee work overtime from time to time.
Under the unique facts of that case, including detailed statistics related to the percentage of similarly situated employees who had worked overtime for the employer, the MCAD Hearing Officer found that the no-overtime request could have been accommodated. The Hearing Officer went on to state that the employer failed to engage in the interactive process when it declined to consider the employee for open positions that may have accommodated her request. The employee was awarded six figures in damages, and even more in attorneys’ fees.
Later this month, on Wednesday, February 19, from 12:15 to 1 p.m. ET, I will be presenting a complimentary, informative webinar to discuss your interactive process obligations. I will go over the steps in the process and present a plan for HR to follow when evaluating and responding to reasonable accommodation requests. There will also be a Q & A session at the end of the presentation. You can register for the webinar here: Processing the Interactive Process.
I hope you will join us.