Employer Requirements Regarding Reasonable Accommodation
Individuals with disabilities have the right to accommodations in the workplaceBy Lindsay Kramer | Last updated on May 9, 2022
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Employers are required to comply with certain laws for employees’ protection. These include Title VII of the Civil Rights Act, the Pregnancy Discrimination Act, and the Americans with Disabilities Act. The ADA states that employees whose physical or mental disabilities inhibit their senses or movement be given accommodations in the workplace that make it possible for them to enjoy the same “benefits and privileges of employment” that their colleagues experience.
Employers may not refuse to interview a qualified individual who can perform the essential functions of the job because they make an accommodation request, such as a change of venue or the aid of an interpreter. They also may not use a qualified applicant’s disability as a reason not to hire them for a vacant position.
Types of Accommodations
A few examples of effective accommodations for an employee’s disability or job applicants:
Conducting an interview or having an employee work on the first floor of a building if there is no elevator. Asking a company to install an elevator to accommodate an employee in a wheelchair may be an undue burden, but moving an interview or workspace to an area the wheelchair-bound individual can access is not;
Allowing an individual who cannot stand for prolonged periods of time to sit on a chair or step stool;
Creating a parking space close to the building for an employee who needs it;
Allowing a deaf individual to bring a sign language interpreter to their interview; and
Providing a blind employee with training materials that they can read, such as Braille or large print text.
“If a person has a disability or some kind of impairment, they need to specifically tell the employer and request an accommodation,” says Ashley E. Tremain, an employment litigator with Tremain Artaza in Dallas who has handled several reasonable accommodation cases on behalf of employees. “That sounds like a very basic thing, but it’s often that someone comes in and says, ‘My employer is being hard and they know I have this issue,’ and we say, ‘Have you gone through the accommodation process and asked for assistance—to work in a different area or have fewer hours?’ I’d say more than half the time the answer is no.
“The way the law works, the onus is on the employee initially to be the one to reach out and start the application process ,” Tremain says, adding that it’s best to do so in writing—such as an email—in case you need to prove it later. “Then it’s best to follow up, in person, and have a conversation so it’s not perceived as hostile.” After that request is made, the legal burden shifts. The employer has a legal obligation to begin an interactive process.
Is it Reasonable?
Not all requested accommodations are reasonable or involve an essential function of the job. Sometimes an employee request is simply asks too much of the employer and the request may be denied. Under the Americans with Disabilities Act, accommodations must only be made for employees if they are deemed to be reasonable. When the cost of the accommodation is too expensive for a company to realistically make or if it poses an undue hardship or hazard to other employees of the company, it is not a reasonable accommodation.
“Unfortunately the law doesn’t give a bright line as to what’s reasonable or not, but generally, an employee needs to prepare to be flexible. It’s best to go to your employer with a couple of ideas and say, ‘I’m having this problem and I can still do my job if you did A, B, or even C,’” Tremain says. “If they unilaterally reject all the ideas or don’t make suggestions of their own, that’s a big red flag.”
Tremain had a recent client who completed chemotherapy but wasn’t quite ready to return to work full-time. The employer gave her the required leave, but she feared they may terminate her if she couldn’t return to her work schedule full-time. “The disability laws require that you engage in continuing conversations with that employee, even if they can only return part-time,” Tremain says.
If the employer has rejected a request and Tremain believes they have a case, she notifies the employer in writing. “More often than not an employee comes to us after they’ve been fired or they were forced to quit,” Tremain says.
Most of Tremain’s cases involve a negotiation with the employer—meaning a settlement—before reaching a courtroom. In order to sue, discrimination charges must first be filed through the Equal Employment Opportunity Commission (EEOC) and Texas Workforce Commission. After 180 days, a lawsuit may be filed.
“One of the big frustrations is how long all of this takes,” Tremain says. “From the time she’s fired up until the time we can actually file a lawsuit is seven to nine months. And once you file, you’re looking at a year or two before seeing a jury.”
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