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Top 10 Mistakes to Avoid During the Reasonable Accommodation Process

The Americans with Disabilities Act (ADA) and California Fair Employment and Housing Act (FEHA) both require employers to make reasonable accommodations for qualified individuals with disabilities, provided that the accommodations do not impose an “undue hardship” on the employer.

By definition, a reasonable accommodation is any modification or adjustment to a job, to an employee’s work environment, or to the way things usually are done that enables a qualified individual with a disability to enjoy an equal employment opportunity. It also is any modification or adjustment that allows an employee to perform the essential functions of a job that similarly situated employees without disabilities hold. The reasonable accommodation process can be tricky to navigate, and mistakes can lead to unwanted litigation. Here is a list to help you identify and avoid the most common employer mistakes.

  • Failure to recognize that an accommodation request was made. A best practice is to have a policy that requires employees to consult with your human resources department – rather than supervisors – if they need an accommodation. By doing so, companies limit the amount of confidential information being reported to supervisors. Supervisors should be trained to report all accommodation requests to HR without asking employees follow-up questions.

  • Requesting too much medical information in order to provide an accommodation. Both federal and state laws restrict an employer’s ability to make disability-related inquiries.

  • Inappropriately sharing an employee’s medical condition or accommodation with others. Generally, only a manager needs to know the nature of the accommodation and that the accommodation has been approved.

  • Denying an accommodation request because the employee did not provide a solution. Even if an employee does not offer a solution, the employer must still engage in the interactive process to determine if a reasonable accommodation can be made.

  • Ending the accommodation dialogue with the employee because no reasonable accommodation would allow the employee to perform the job’s essential functions. If an employee cannot perform the essential functions of the job, the employer should see if other accommodations can be made such as reassigning the employee to an open position, allowing the employee to work part time or providing the employee with an unpaid leave of absence. Even if the request is unreasonable, the employer must engage in interactive dialogue. Employers should consider whether modifications could make them reasonable.

  • Evoke the “we have never done that before” defense. Just because it has never been done before does not mean that it cannot be a reasonable accommodation.

  • Failing to consider the relationship between the ADA and other leave laws. In most cases, a disability under the ADA will be considered a “serious health condition” under the FMLA.

  • Failing to document the accommodation decision or the interactive process that the employee/employer engaged in. Often times, no documentation means no defense.

  • Defining “undue hardship” too broadly. Cost will rarely be an undue hardship.

  • If denying the accommodation based on undue hardship – did the employer gather evidence to support decision?

The reasonable accommodation obligation is an ongoing duty and may arise anytime a person’s disability or job changes. Disability discrimination laws do not require employers to make any modifications or adjustments to a job or policy that the employer can show would fundamentally alter the essential functions of the job in question. Furthermore, employers are not required to provide indefinite leaves of absence as a reasonable accommodation.

Jackson Lewis P.C. © 2021National Law Review, Volume V, Number 279
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About this Author

Kelly D. Gemelli, Jackson Lewis, non-solicitation agreements lawyer, Retaliation litigation attorney
Of Counsel

Kelly (Wood) Gemelli is Of Counsel with the San Diego, California, office of Jackson Lewis P.C. Ms. Gemelli represents employers in all areas of employment law and has litigated a broad range of employment matters.

Ms. Gemelli's experience includes:

  • Discrimination and harassment suits on the basis of age, race, national origin, gender, and disability
  • Leave issues
  • Non-competition and non-solicitation agreements
  • ...
619-573-4916
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