Reasonable Accommodation for Disabled Employees

Overview and Coverage

The Americans with Disabilities Act (“ADA”) includes within its definition of illegal discrimination an employer’s failure to make “reasonable accommodations to the known physical or mental limitations of an otherwise qualified individual with a disability who is an applicant or employee, unless [the employer] can demonstrate that the accommodation would impose an undue hardship” on the business operation. 42 U.S.C. § 12112(b)(5)(A). Accordingly, an employer covered by the ADA has an affirmative obligation to provide reasonable accommodations to employees with known disabilities unless the employer can demonstrate that so doing would subject it to an undue burden. As discussed below, this typically involves an interactive process between the employer and the employee wherein both sides discuss in good faith potential accommodations that would allow the employee to perform the essential functions of her job.

Atlanta employment attorney Justin Scott represents both employers and employees with respect to issues related to reasonable accommodation of disabilities.

Interactive Process

EEOC regulations provide that, “[t]o determine the appropriate reasonable accommodation it may be necessary for the [employer] to initiate an informal, interactive process with the individual with a disability in need of the accommodation. This process should identify the precise limitations resulting from the disability and potential reasonable accommodations that could overcome those limitations.” 29 CFR § 1630.2(o)(3).

The interactive process is generally initiated by an employee informing the employer of the need for an accommodation. 29 CFR § 1630.2(o)(3). The employer is then obligated to look into the matter and offer a reasonable accommodation. The Eleventh Circuit has held that an employer’s “duty to provide a reasonable accommodation is not triggered unless a specific demand for an accommodation has been made.” Gaston v. Bellingrath Gardens & Home, Inc., 167 F.3d 1361, 1363–64 (11^th Cir.1999). The employee is not required to accept the reasonable accommodation but if he declines the accommodation and is consequently unable to perform the essential functions of his position, he will not be considered a qualified individual with a disability. 29 C.F.R. § 1630.9(d). If the employee fails to engage in the interactive process, that may preclude liability for the employer if no reasonable accommodation can be implemented.

Reasonable Accommodation

What constitutes a reasonable accommodation depends on the individual circumstances of the employee, the employer and the applicable workplace. Categories of potential accommodations include modifying physical facilities, restructuring certain work duties that are not essential to the job in question, reassignment to vacant positions, and/or permitting use of leave. These accommodations may mean that an employer is required to pay more to get the same performance from a disabled employee. Borkowski v. Valley Cent. Sch. Dist., 63 F.3d 131, 138 n.3 (2d Cir. 1995). However, “[a]n accommodation is only reasonable if it allows the disabled employee to perform the essential functions of the job in question.” Frazier-White v. Gee, 818 F.3d 1249, 1255 (11^th Cir. 2016).

The ADA does not require an employer to accommodate an employee by eliminating essential job functions. What constitutes an “essential job function” is determined by consideration of a number of factors including the evaluation of the employer and “the consequences of not requiring the [employee] to perform the function.” Holly v. Clairson Indus., L.L.C., 492 F.3d 1247, 1258-59 (11^th Cir. 2007). An employer’s judgment is not conclusive “because ‘then an employer that did not wish to be inconvenienced by making a reasonable accommodation could, simply by asserting that the function is ‘essential,’ avoid the clear congressional mandate.’” Everett v. Grady Mem’l Hosp. Corp., 703 F. App’x 938 (11^th Cir. 2017) (quoting Holly, 492 F.3d at 1258). However, the employer’s job description for the position shall be considered evidence of the essential functions. 42 U.S.C. § 12111(8).

Undue Hardship

An employer can seek to avoid ADA liability based on a failure to accommodate claim by demonstrating that the proposed accommodation would have caused it undue hardship, defined as “an action requiring significant difficulty or expense.” 42 U.S.C. § 12111(10)(A). Factors to consider in determining whether a reasonable accommodation causes an undue hardship are:

1. the nature and cost of the accommodation needed;
2. 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;
3. 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
4. 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)(B). The EEOC regulations also include as a factor to consider, the “impact of the accommodation upon the operation of the facility, including the impact on the ability of other employees to perform their duties and the impact on the facility’s ability to conduct business.” 29 CFR § 1630.2(p)(2)(v). Accordingly, each proposed accommodation must be analyzed in the specific context in which it is requested and an accommodation that might be feasible for one employer might be an undue hardship for another.

Retaliation

Employers may not retaliate against individuals who engage in protected conduct under the ADA, which includes making requests for reasonable accommodation. The elements of such a claim are: (1) the employee engaged in statutorily protected conduct, (2) she suffered an adverse employment action, and (3) there was a causal link between the protected conduct and the adverse action.

Contact Radford Scott LLP at (678) 780-4880 for assistance with the Americans with Disabilities Act and/or reasonable accommodation issues, or contact the firm online here.