Helpful Guidelines When an Employee Requests or Needs Accommodation

Posted by: Karen Booher on September 11th, 2024

Do you have a process in place for when an employee asks for accommodation, or when you become aware that accommodation may be necessary?

Every situation is different, and it’s important to respond timely and appropriately to comply with the Americans with Disabilities Act (“ADA”). If you are unsure of how to respond, or if both the employer and employee disagree on what accommodation(s) are appropriate or needed, it is best to consult with legal counsel.

For those situations where an acceptable resolution/accommodation can be easily agreed upon, the following guidelines outlined by Robin Shea at Constangy Brooks Smith & Phrophete LLP may be very helpful to understand as you go through that process.

Guideline #1 – There are no formal rules.

The U.S. Equal Employment Opportunity Commission (“EEOC”) administers the ADA. But, the good thing is, when making a disability-related accommodation under the ADA, if you and the employee can agree on an appropriate accommodation, you should be all set.

Guideline #2 – You don’t have to accommodate a disability you don’t know about.

You are not required to be a mind-reader. For example, if you have an employee who has a medical condition that requires accommodation, but the employee is a very private person and never tells you about it, you generally are under no obligation to accommodate that condition because the employee is responsible for disclosing it AND for requesting accommodation. However, if the employee’s condition is obvious, and if it seems to be affecting job performance, safety, or behavior, then you – as the employer – should initiate the discussion and not wait for a disclosure/request from the employee.

Guideline #3 – You (the employer) make the call, usually.

You are required to take under consideration any reasonable accommodation proposed by the employee but, at the end of the day, it can be your call. As long as your accommodation is effective, you may choose an accommodation that works best for you and your company, including a less expensive accommodation. This is true even if the employee’s proposed accommodation would not be an undue hardship for you.

Guideline #4 – You can confer with the employee’s health care provider, usually.

In some cases, to provide effective accommodation, you may need to know what the employee’s condition is and what the employee’s healthcare provider thinks will help. You are allowed to ask.

One way to approach this is for the employer to draft a letter for the employee to take to the provider that describes what has been going on at work, provides a thorough description of the employee’s job including physical or mental demands, and asks for recommendations. Important: if you want the provider to answer your letter, be sure to have the employee sign a valid medical authorization that complies with the privacy rule of HIPAA, which prohibits the provider from communicating with anyone unless the employee authorizes it.

If there is good reason for doing so, you can even require the employee to see a provider of your choice (yes – you should pay for that assessment), particularly if you feel the employee’s provider is not the best qualified to assess the employee’s condition and make meaningful recommendations.

Guideline #5 – Know that accommodations may need to change over time.

Medical conditions don’t always remain the same. They can get better – or worse – over time, which may require an adjustment in an accommodation that was put in place. If the employee gets better, you may be able to accommodate less, or even altogether. If the condition becomes more severe, you may have to make more accommodations than was originally put in place. Original accommodations may also need to be adjusted based on changes in technology used on the job, changes in business conditions, your company’s philosophy on remote work, etc.

Guideline #6 – If you have some flexibility and are able to, err on the side of accommodation.

If an employee’s medical condition seems like it could be a disability but you’re not sure, it’s best to try to accommodate if you are able to. In 2008, Congress amended the ADA to make the definition of “disability” much more encompassing than it had been in the past. If the employee’s situation is borderline, it may not be worth risking losing a battle with the EEOC and the courts if you deny an accommodation request that is later challenged by the employee.

Guideline #7 – Beware of overlap.

Workers’ compensation, the Family and Medical Leave Act (FMLA), and the ADA are not mutually exclusive – all three can apply at once. There may also be state disability protection laws and state leave laws (such as Colorado’s paid leave law). One common employer mistake is refusing to give an employee leave for a legitimate medical condition because the employee has either exhausted their FMLA allotment or hasn’t been employed long enough to be eligible for FMLA leave. Even if they are not entitled to FMLA leave, they may still be entitled under the ADA to some sort of leave as a disability-related accommodation, or to Paid Leave through the state leave laws.

Other more obvious, but important points

The following additional guidelines may be a bit more obvious, but they are not to be taken for granted when faced with an employee requiring possible accommodation(s):

• Engage in the interactive process.
• Document all of your efforts.
• Don’t retaliate against an employee for requesting a reasonable accommodation.
• Consult with employment counsel as needed.

The content in this blog should not be considered legal advice.

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Source:

ASA Staffing Today, 8/21/2024, “Reasonable accommodation and the ADA: Top 8 rules for employers”, by Robin Shea, Constangy Brooks Smith & Prophete LLP, August 16, 2024.