What’s Reasonable in an Employment Accommodation?

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• A Confusing Legal Standard
• It Calls for a Personalized Process

The consequences of an employer mishandling a request for a reasonable accommodation can be serious, and the COVID-19 pandemic has only raised the stakes.

“Employees have suffered greater incidents of anxiety and depression and emotional distress resulting from being sick with COVID or losing loved ones to the disease,” says Rachel Benjamin, an employment and labor attorney at Hall & Lampros in Atlanta. “Some employers have been accommodating, and telework does provide options for employees. But there are instances where these problems are being ignored by employers.”

A Confusing Legal Standard

One challenge is the concept itself. A reasonable accommodation is “something an employer is obligated to provide if an employee is qualified as disabled,” says Alex Barfield, an employment and labor attorney with Stanton Law in Atlanta. “As a general standard, that’s as clear as mud.”

The Americans with Disabilities Act, passed in 1990, is the federal law covering reasonable accommodations for employees “so long as the accommodation doesn’t impose what is called an ‘undue hardship’ on the employer,” Benjamin explains.

State and local laws, however, may define disability differently—or not at all. “In Georgia,” says Benjamin, “there is not an equivalent state law.”

“The assessment of what is considered ‘reasonable’ has always been a murky area,” adds Nancy Castor Sprattlin, who runs an eponymous employment firm in Atlanta. “And the post-pandemic era has made this area even murkier. An employer is only required to provide reasonable accommodations and not required to excuse an employee from performing essential functions of the job, even if the employer temporarily excused performance of certain essential functions by permitting remote work during the pandemic.”

It Calls for a Personalized Process

Mental health matters can be the cause of additional misunderstandings. “When mental health conditions manifest themselves in sudden ways,” Sprattlin says, “employees are typically unable to give employers sufficient notice that they need accommodation. And unfortunately, employers sometimes are even skeptical that those employees need accommodations at all. Because of their unique and sudden nature, it can be very challenging for employers to manage mental health conditions, especially
if an employer thinks the employee is using the medical condition as a basis for not performing.” 

Barfield calls this area of law “incredibly subjective. You need a personalized process. Hard and
fast rules are disfavored. What we see is employers, particularly if it’s their first rodeo, playing doctor with respect to whether someone is disabled, or not understanding that a leave request for a number of weeks can be a reasonable accommodation even if it looks ridiculous on paper.”

As an example, he describes an employee who says her doctor is suggesting a 12-week leave. “Employers may have a knee-jerk reaction,” Barfield says, but “they have to sit down with that employee, get doctor approvals, determine whether they can afford to let that person be off that long, take a granular look. You can’t just shoot from the hip.”

A rash decision could lead to a lawsuit in federal court.

You could be on the hook for damages and attorney fees,” Barfield says. “A lawyer pays off, particularly early on, before you make a decision. We can set it up so you make a decision that is most defensible in the event of a lawsuit. If that’s a few hours of talking and research, that’s a lot cheaper than court.”