What’s Reasonable in a Reasonable Accommodation?
Lawyers attempt to unpack the definition under state and federal lawBy David Levine | Last updated on October 3, 2022
When a New York woman was hospitalized because of a pregnancy-related condition, she asked her employer for a few days off and wanted to modify her work schedule to have time for treatment and recovery. She thought it was a reasonable accommodation. Her employer didn’t and denied the request.
That denial has proven costly so far.
“The New York State Division of Human Rights ordered the company to pay back wages, emotional distress damages, attorneys fees and civil fines,” says the woman’s lawyer, Melissa Alexis Rodriguez of Berlingieri Law in Manhattan. “It was held that the company discriminated against my client when it failed to provide her the reasonable accommodation of reasonable time for recovery from her pregnancy-related condition and terminated her employment.”
So what are reasonable accommodations in the workplace? Rodriguez lists examples: “Someone who needs more bathroom breaks due to a medical condition, someone who needs to leave work early for doctor’s appointments, someone who needs a delay in their start time due to childcare obligations, someone who needs breaks and a private lactation room, and someone who needs time off for surgery and a lifting restriction when they return to work.”
Although state and federal statutes on the topic are similar, there are important differences.
The Americans with Disabilities Act is the federal law covering accommodations for employees, Rodriguez says, and under New York Human Rights Law the definition of disability encompasses both temporary and permanent disabilities, and both physical and mental disabilities.
“New York State law and city law define disability very broadly, while the federal law has a more specific definition,” Rodriguez says.
“Under federal law,” adds Valerie J. Bluth, of Ellenoff, Grossman and Schole in New York, “the employee’s medical condition must ‘substantially limit’ a ‘major life activity’ such as breathing, walking, talking, hearing, seeing, sleeping, caring for one’s self, performing manual tasks and working. However, in New York City, the definition of a disability is much broader and does not require much analysis—any diagnosable medical condition, even if temporary, is considered a disability.”
Bluth says: “I often say, only half-jokingly, that a hangnail could be a disability under New York City law.”
“The question of reasonability is what makes or breaks a discrimination case,” Rodriguez says. “The employer has an obligation to engage in an interactive process with their employee who is requesting a reasonable accommodation and determine whether the request is reasonable and whether it will create an undue burden on the company.”
For someone with a physical disability or pregnancy, an employer may need to provide a leave of absence, job modifications, a flexible schedule, remote work, or assistance with manual labor, Bluth says. For a mental health condition such as depression, an employer might be required to offer late arrival or time off to seek treatment.
Religious accommodation is an especially tricky area, Bluth adds. “The standard is whether the employee has a sincerely held religious belief, and the inquiry into whether or not an employee’s religious belief is sincerely held can be fraught with uncertainty.”
Employers may seek confirmation of an employee’s religious belief from community members or religious leaders with personal knowledge of the employee. However, “asking for further confirmation once the employee has provided evidence that on its face supports that the employee does hold the stated religious belief could be deemed retaliatory,” she says. “Similarly, determining whether a belief is truly religious in nature may not be as easy as it sounds. While the law does not protect social, economic or political beliefs, the term religion does include both non-traditional organized religions—think Scientology—and also ethical and moral beliefs held with the same conviction as traditional religious beliefs.”
The COVID-19 pandemic has changed things considerably, too.
“The most obvious is working remotely,” says Howard Schragin, at Sapir Schragin in White Plains. “While this has always been an available reasonable accommodation to persons with disabilities, it became more prevalent during the COVID era.”
At the office, meanwhile, reasonable accommodation requests included such COVID safety measures as partitions, walking routes, air purifiers, separated lunch and meeting rooms, sanitation supplies, provision of PPE and video conferences, says Schragin.
Bluth adds that COVID-19 “has also brought a variety of religious beliefs into the spotlight, particularly with respect to vaccination.”
Opinions on what is reasonable will continue to differ, of course. Remember Rodriguez’s pregnant client who won her case? The company has appealed the decision.
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