RISKVUE ARCHIVE | FEATURE STORIES

The Employer’s Duty To Reasonably Accommodate “Disabled” Employees

By Ellen M. Tipping

Despite its best efforts to act properly in accommodating a “disabled” employee, there is no assurance that an employer will be protected in the event of a claim if it cannot show an effective give-and-take exchange with the employee. There are specific steps that an employer should take when working with an employee to determine whether a “reasonable accommodation” can be made with respect to the employee’s job. Thorough documentation of each of these steps will greatly promote the employer’s chance of success in defending a claim.

What Is “Reasonable Accommodation?”

The Americans with Disabilities Act (“ADA”), Equal Employment Opportunity Commission (“EEOC”) guidelines, and judicial interpretations of employment statutes and regulations require employers to engage in a timely and good-faith “interactive process” with a disabled employee to ensure that no reasonable accommodation for the employee is overlooked. Last year, California joined other jurisdictions in requiring employers to engage in the process recommended by the EEOC. While a mandatory interactive process is becoming the prevailing view, some jurisdictions determine whether the process was necessary on a “case by case” basis.¹ Even in those jurisdictions, the employer’s safest bet is to follow the process recommended by the EEOC regulations.

While the reasonable accommodation doctrine comes into play both with existing employees and job applicants, employers most commonly face situations where an existing employee becomes disabled and cannot perform his or her job without some kind of adjustment to the physical environment, time spent at the workplace, or procedures in accomplishing essential tasks of the job. Employers generally are required to provide such employees with a reasonable accommodation that allows the employee to perform the essential functions of his or her job. “Reasonable accommodation” can take many forms, such as making facilities accessible to or usable by disabled individuals, job restructuring, reassigning the employee to another position, or equipment modification.

What Triggers The Employer’s Obligation?

Once an employer becomes aware of an employee’s need for accommodation, it is obligated to begin a dialogue with the “disabled” employee. It is not necessary for the employee to request a modification to his or her job.

What Is The Employer Required To Do?

The courts generally require the employer to engage in a timely and good-faith process. In order to demonstrate good-faith participation, the employer should (1) meet with the employee who requests or needs an accommodation, (2) request information about the condition and what limitations the employee has, (3) ask the employee what he or she specifically wants, (4) show evidence of having considered the employee’s request, and (5) discuss and offer available alternatives when the request is too burdensome.”² If the communication process breaks down through delay or obstruction, the courts may determine whether the breakdown was the fault of the employer or the employee.³

Limits On Reasonable Accommodation?

The employer has ultimate discretion in choosing between accommodations and is entitled to offer the accommodation that is least expensive or easiest to provide. This is true as long as the accommodation is effective and allows the employee equal opportunity. The employer is not required to create a job, nor is it considered reasonable for the employer to have to eliminate an essential function. The employer does not have to promote the employee to another job and does not need to allow the employee to continue to work where the health or safety of the employee or others would be endangered.

The Interactive Process

When holding a “reasonable accommodation” dialog with a “disabled” employee, the employer should observe and document the following four-step process:

(1)  Identify barriers to the employee’s performance of his/her essential job functions. The employee is obligated to communicate his/her limitations so that the employer can understand the job restrictions presented. The employer is obligated to perform a job analysis and assess the essential functions of the job.

(2)  Identify reasonable accommodations. The employer should not limit itself to the possible accommodations suggested by the employee. Rather, the employer must look for any solutions that would fit the limitations communicated by the employee and that would allow the employee to perform the essential functions of the job. The impact on the employer’s operations, as measured by the cost of the accommodation, the overall financial resources of the company, the number of employees, among other factors, may make any accommodation impractical for the employer.

(3)  Assess the reasonableness of each possible accommodation in terms of effectiveness and equal opportunity. The accommodation need only be reasonable, effective and appropriate for any employee with a similar disability. While the employer must make thorough and careful efforts to engage in a reasonable accommo-dation dialogue, the employer is not required to provide an accommodation at all costs.

(4)  Implement the accommodation. The employer has the continuing obligation to work with the employee in the event the initial accommo-dation turns out to be ineffective.

Conclusion

Employers that have reason to believe that an employee requires an accommodation to perform the essential functions of his/her job should initiate a give-and-take dialogue with the employee to attempt to find out if a “reasonable” job accommodation can be made. By thoroughly documenting such dialogue and the attempts to provide a reasonable accommodation, employers can reduce the risk of a costly ADA or EEOC claim. 

Notes
(1) Kvorjak v. Maine (1st Cir. 2001) 239 F.3d 48.
(2) Barnett v. U.S. Air, Inc. (9th Cir. 2000) 228 F.3d 1105, 1115.
(3) Taylor v. Phoenixville School District (3rd Cir. 1999).

ABOUT THE AUTHOR

Ellen M. Tipping is an attorney with Cotkin, Collins & Ginsburg, practicing in the firm’s Orange County office in Santa Ana, California. She specializes in general litigation and represents and advises employers. She can be reached at 714-835-2330.

riskVue | The webzine for risk management professionals
June 2002