Of all the employment discrimination claims filed with the Massachusetts Commission Against Discrimination last year, disability claims ranked at the top, with 1,082 claims filed.
It is important to know that there are many aspects to the federal and state legal requirements for employers managing employees with disabilities. In particular, implementing “reasonable accommodation” may be subject to expansive interpretation.
Under the Americans with Disabilities Act, reasonable accommodation is defined as “a modification or adjustment to a job, the work environment, or the way things are usually done during the hiring process. These modifications enable an individual with a disability to have an equal opportunity not only to get a job, but successfully perform their job tasks to the same extent as people without disabilities.”
Employers are required to engage in an interactive dialogue with an employee after a request for an accommodation. Not only is an interactive dialogue the right thing to do, but a record of meaningful communication looking for a reasonable accommodation also makes defense of a claim much stronger.
Managing disability requests
The following are some key recommendations for employers when they receive a request for an accommodation:
1. Don’t question whether the employee is “really” disabled. If an employee seeks an accommodation for a disability, the employer is advised against discrediting the employee, even if the employer does not believe the disability is recognized under federal or state law. Employees with physical, psychological and cognitive disabilities should be granted an accommodation if they can perform the essential functions of the job with or without an accommodation.
Not all disabilities are readily apparent. For example, an employer may not be aware that an employee has an intellectual disability, but he or she may request additional training as an accommodation. In the recent past, courts have identified employees as disabled for conditions such as aversion to scents or fluorescent lighting. Employers are advised to be open-minded when an employee presents a request for accommodation.
2. Don’t second guess a doctor’s recommendation for an accommodation. If an employee provides medical documentation for a disability and seeks an accommodation, do not challenge the request based on your observations of the employee or your knowledge of how another employee handled a similar diagnosis. Employers may be tempted to opine that a specific treatment does not require the length of time away from the office that an employee has requested, or does not require the medication prescribed by the doctor, but employers are advised against challenging a qualified medical opinion, even if they disagree with it or the employee appears to be physically fit.
3. Remain engaged in the interactive process. If an employee makes a request for an accommodation in the workplace, the employer must accommodate that employee unless doing so creates an “undue hardship.” Proving an undue hardship, however, is a difficult task at trial.
Municipal employers, it should be noted, would find it challenging to assert the defense of an undue hardship based on financial implications. The court will often consider the entire municipal budget when deciding whether funding could be found to accommodate a particular disability.
An employer should try to be creative to provide a work environment that accommodates the employee’s disability in order to create a positive work environment for both the employee and the employer. An employer does not have to accept every accommodation that an employee seeks, but the employer does need to “engage in the interactive process.” The employer may offer an alternative accommodation to the employee if it accomplishes the same goal.
At no point should the interactive process be shut down by the employer unless an agreeable accommodation is reached between the two parties. For example, if an employee’s doctor recommends that the employee bring an emotional support animal to work as an accommodation, but an employee working in close proximity has allergies, the employer may engage with the employee to seek an alternative accommodation.
4. The burden is on the employee to request an accommodation. Requests for an accommodation often arise after an employee has suffered an adverse employment action (such as a bad performance evaluation or discipline for wrongdoing). If the employee discloses a disability and requests an accommodation after an adverse employment action, the employer is not required to go back and erase the adverse employment action. Moving forward, however, the employer must work with the employee to accommodate the disability.
5. Beware of “discrimination by association. ”An employer cannot treat an employee differently because he or she has a known association or relationship with a disabled individual. For example, an employer cannot deny a promotion to an employee because that employee’s child suffers from a disability. “Discrimination by association” is recognized both by federal and state law.
6. Check recognized reasonable accommodations. The U.S. Equal Employment Opportunity Commission provides examples of reasonable accommodations, which include: making existing facilities used by employees readily acceptable to and usable by an individual with a disability; restructuring a job; modifying work schedules; acquiring or modifying equipment; providing qualified readers or interpreters; or appropriately modifying examinations, training or other programs.
Exercise caution regarding policies that would ban “light duty” or call for termination when an employee is absent for more than a certain number of days. The courts frown upon such policies.