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Employment NewsFlash, October 2010
Employers' Obligations under the New ADA:
Responding to Employee Requests for Accommodations

The Americans with Disabilities Act (ADA), amended early last year, places new emphasis on employer responses to requests for accommodations from employees claiming to be disabled under the ADA. The ADA always required employers to engage the employee in an interactive dialogue aimed at identifying reasonable accommodations for the alleged disability. The ADA’s recent amendments add further texture to that requirement.

While the interactive dialogue should be tailored to the work environment of each employer, the following procedure provides guidance to employers in identifying and assessing the reasonableness of employee accommodation requests.

•  Gather facts from the employee. When an employee advises the company of a claimed disability, the appropriate manager or human resources representative should meet with the employee to obtain further information. The employee should be asked to identify both the work limitations and a range of various accommodations the employee believes would address those limitations. If input from a physician is necessary, ask the employee to provide that documentation as well.

The purpose of this meeting is to gather facts and obtain the employee’s input. The employer should not immediately provide feedback about the viability of different possible accommodations proposed by the employee or the employee’s perceived work limitations.

•  Identify potential accommodations. Armed with the employee’s specific request and any additional information needed from treating physicians, the employer should then independently – and outside the presence of the employee – identify what the employer believes are potential accommodations that would address the employee’s limitations. The employer’s list of potential accommodations need not be limited to those proposed by the employee. Indeed, it should encompass the whole universe of options. To identify possible accommodations, employers should review the essential job functions of the employee’s current position to determine how and whether the employee may continue to perform those functions. Examples of potential accommodations include modification of duties or schedules within the current position, physical assistive aids or transfer to another position.

•  Determine the reasonableness of potential accommodations. Once all of the potential accommodations are identified, review each for its reasonableness. According to the ADA, an accommodation is reasonable if it does not “fundamentally alter the nature of the goods, services, facilities, privileges, advantages or accommodations” of the employer’s business.

An accommodation that would cause an “undue hardship” to the employer is not a reasonable one. However, an “undue hardship” is not simply a generalized conclusion that an accommodation would cost too much. A determination of undue hardship should be based not only on the cost of the accommodation, but also on the overall financial resources and size of the business, the type of business, and the specific impact of the accommodation on business operations. The ADA requires an employer to consider all possible sources of outside funding when assessing whether a particular accommodation would be too costly. For example, an employer considering installing a wheelchair ramp should consider whether installation may be affordable based on available tax credits or deductions or funds from a state rehabilitation agency.

An employer cannot claim undue hardship based on the fears or prejudices of employees or customers toward the alleged disability. Nor can undue hardship be based on the any negative impact the accommodation would have on employee morale. For example, although a co-worker may not be happy to assume certain job duties from the disabled employee, such assignment may be a reasonable accommodation if the co-worker can perform the duties effectively without significant disruption to the employer’s operations.

When assessing reasonableness, the employer should be cognizant of accommodations provided to other employees. If a co-worker covers the phones for an employee who arrives late due to childcare needs, it would be reasonable to provide a similar arrangement for an employee who arrives late due to a disability.

•  Communicate the decision to the employee. An employer is not required to provide the accommodation requested by the employee. If the employee specifically asks for an accommodation that either cannot be provided (or the employer decides not to provide), the employer should explain in detail why the accommodation requested by the employee was not selected. The employer has the final say in what accommodation is provided, so long as the accommodation provided would appropriately address the employee’s limitations. If during the second or a later meeting the employee identifies another potential accommodation, that request should be assessed for reasonableness as well. To the extent the employee buys-in to the proposed course of action, the less likely the employee will bring an ADA claim in the future.

•  Document the process. The employer should draft and retain a confidential, internal file memorandum documenting the above-outlined interactive process, regardless of whether the employee agrees to the accommodation(s) offered. The memorandum should identify the dates of each meeting with the employee, the accommodations and limitations identified by the employee, and the employer’s own efforts to identify and assess the reasonableness of accommodations. The memorandum will memorialize the employer’s efforts and be important in the event the employee files an ADA claim against the employer.

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Employment & Labor Practice Group counsels businesses on how to prevent employment-related problems before they arise. At the first sign of a problem, our clients receive practical, step-by-step advice on how to manage the situation. If a dispute erupts, our lawyers render advice at every stage - investigation, negotiation and, if necessary, litigation.

Employment & Labor Practice Group

William E. Mahoney Jr.
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James F. Podheiser
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A. Nicole Stover

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Employers' Obligations under the New ADA:
Responding to Employee Requests for Accommodations
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