worker in need of a reasonable accommodation

A worker in need of a reasonable accommodation.
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The Americans with Disabilities Act (ADA) and California’s Fair Employment and Housing Act (FEHA) require accommodations for employees with disabilities. If a qualified employee requests a reasonable accommodation, the employer must provide it unless it “can demonstrate that the accommodation would impose an undue hardship on the operation of its business.”[1]

Determining whether an accommodation would impose an undue hardship can sometimes be tricky. Each determination must be made on a case-by-case basis, as the ADA and FEHA require an interactive, fact-specific process. An employee who requests an accommodation need only show that it is “reasonable on its face, i.e., ordinarily or in the run of cases.”[2] This is a light burden. The employer must then either grant the request or “show special (typically case-specific) circumstances that demonstrate undue hardship in the particular circumstances.”[3]

The EEOC has explained that:

Whether a particular accommodation will impose an undue hardship for a particular employer is determined on a case by case basis. Consequently, an accommodation that poses an undue hardship for one employer at a particular time may not pose an undue hardship for another employer, or even for the same employer at another time. Likewise, an accommodation that poses an undue hardship for one employer in a particular job setting, such as a temporary construction worksite, may not pose an undue hardship for another employer, or even for the same employer at a permanent worksite.[4]

As a result, there are seldom bright line rules.

The law and regulations do, however, provide guidelines. A requested accommodation would impose an “undue hardship” where it requires “significant difficulty or expense” to the employer.[5] Several factors are considered:

(i) The nature and net cost of the accommodation needed . . . , taking into consideration the availability of tax credits and deductions, and/or outside funding;
(ii) 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, and the effect on expenses and resources;
(iii) The overall financial resources of the covered entity, the overall size of the business of the covered entity with respect to the number of its employees, and the number, type and location of its facilities;
(iv) The type of operation or operations of the covered entity, including the composition, structure and functions of the workforce of such entity, and the geographic separateness and administrative or fiscal relationship of the facility or facilities in question to the covered entity; and
(v) 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.[6]

Thus, the determination requires an examination of the resources necessary to provide the accommodation, the resources the employer has, and the impact of the accommodations on the business and on coworkers.

The larger the employer or the greater resources that it has, the more it is expected to do to accommodate an employee. Similarly, the less of an impact on its business or other employees that a requested accommodation would have, the less likely that an employer will be able to prove that it would have caused an undue hardship. Note that, according to the EEOC, an employer cannot base an assertion of undue hardship on the negative effect an accommodation would have on the morale of other employees, but may claim undue hardship when the accommodation sought would be “unduly disruptive” to other employees’ ability to do their jobs. [7]

Conclusion

Once a qualified employee requests a reasonable accommodation, the employer must grant the request unless it can demonstrate specifically that the accommodation would create an undue hardship. The analysis is case-specific, and looks at a number of factors. Even if a requested accommodation would create an undue hardship, the employer must engage in an interactive process to determine whether other accommodations are available that would enable the employee to do her job.

Response to a question: Generally speaking, if an employee has made an accommodation request and feels that it is being denied even though it is reasonable and would not impose an undue hardship, the employee should discuss it with the company’s representative (usually HR or a manager). The law anticipates that there be an “interactive process” where both sides discuss options, so a denial of a requested accommodation should not be the end of the discussion. If some other reasonable accommodation exists that would meet the employee’s needs without imposing an undue hardship, it should be given. If there is not and the company holds firm, the employee should consider speaking with a lawyer to explore options.

* * *

For a more detailed analysis, please refer to my publication,
“Leave As A Reasonable Accommodation Under The Americans With Disabilities Act.” Labor & Employment Law Forum 3, no. 1 (2013): 29-47
. Also look at my previous posts on leave as a reasonable accommodation and on “no fault” attendance and maximum leave policies.

Sources

[1] 42 U.S.C. § 12112(b)(5)(A); see also 29 C.F.R. §1630.9(a).
[2] U.S. Airways, Inc. v. Barnett, 535 U.S. 391, 401-02 (2002).
[3] Id. at 402. Note that if, during the interactive process, the employer determines that more than one reasonable accommodation exists that would enable the individual to perform the essential functions of his job, “the preference of the individual with a disability should be given primary consideration;” however, the employer “has the ultimate discretion to choose between effective accommodations, and may choose the less expensive accommodation or the accommodation that is easier for it to provide.” 29 C.F.R.§ 1630.9.
[4] 29 C.F.R. § 1630.15(d).
[5] 42 U.S.C. § 12111(10)(A); 29 C.F.R. § 1630.2(p)(1).
[6] 29 C.F.R. § 1630.2(p)(2).
[7] EEOC, Notice 915.002, Enforcement Guidance: Reasonable Accommodation And Undue Hardship Under the Americans with Disabilities Act (Oct. 17, 2002) at 42.

Can an employer deny an ADA reasonable accommodation request? was last modified: April 29th, 2016 by Ramit Mizrahi
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