- Responding to Requests for Reasonable Accommodation
- July 15, 2003 | Author: Ellen G. Sampson
- Law Firm: Leonard, Street and Deinard, [incorporation phrase format]Professional Association - Minneapolis Office
In light of several Supreme Court cases which have narrowed the definitions of disability, impairment, major life activity and substantial limitation, employers should consider several issues when determining how to respond to a request from an employee for a reasonable accommodation.
Is the employer covered by the statutes requiring reasonable accommodation?
Under both the Americans with Disabilities Act and the Minnesota Human Rights Act, only employers with fifteen or more employees are required to provide reasonable accommodation.
Is the employee making the request disabled under the ADA?
The employer should first identify what the disability is and determine whether it appears to be a disability under the ADA or the Human Rights Act. If the claimed disability can be mitigated by medication or by the wearing of glasses, for example, it may not be a disability. This is a fact intensive determination. In the event that the employer determines that there is a potentially covered disability, the employer should inquire as to whether the disability substantially limits a major life function. If the employee identifies working as the major life function which is limited, the employee must be unable to perform a broad class of jobs. An inability to perform any particular job probably will not lead to working being considered a major life function under the ADA. Finally, if the employee alleges a substantial limitation in a major life function such as caring for him or herself, the employee will need to show that the employee is limited in a substantial way, not just suffering a minor inconvenience.
The employer may request additional information.
It is reasonable that employees will have to share more details of their personal lives in order to demonstrate that they are substantially limited in major life activities.
When a qualified disabled employee requests an accommodation, the employer must engage in an interactive process.
The employer should review the request for accommodation. If it creates an undue hardship, it need not be provided. The employer may propose another reasonable accommodation. The employer should document all exchanges of information, especially if the result of the process is that no reasonable accommodation can be identified.
Reassignment to a new position may be a reasonable accommodation under certain very specific circumstances.
For it to be a reasonable accommodation, the disabled employee must be qualified for the new position, the position must be vacant, and the reassignment must not create an undue hardship. If no equivalent position is available, the employer must reassign the employee to a vacant lower level position for which the employee is qualified and may pay the lower salary. An employer need not promote a disabled employee, nor must an employer retrain a disabled employee to meet the qualifications of a different position.
When a seniority system is in place, either through a collective bargaining agreement or created solely by the employer, the employer will not, under most circumstances, need to override that seniority system to place the qualified disabled employee. Where a disabled employee is qualified for a vacant position, and a better qualified, non-disabled employee is also qualified, the courts are split as to whether the employer can appoint the best qualified person or must appoint the qualified disabled person.
Attendance is generally an essential function of a job.
If attendance is an essential function, permitting unscheduled absences will probably not be viewed as a reasonable accommodation. A modified schedule, however, may be a reasonable accommodation, depending on the specific facts at issue. On the other hand, permitting an employee to work part-time in a previously full-time position which the employee had previously held, is not a reasonable accommodation.
An employer may refuse to place an employee in a position where the employee constitutes a direct threat.
The direct threat defense will apply either when the employee is a direct threat to others in the workplace or when the employer deems that the employee may be a direct threat to himself or herself if given a particular position.
Work at home as a reasonable accommodation is a fact specific inquiry.
Work at home will not generally be a reasonable accommodation if it requires the employer to make an overall change in its manner of conducting business. Some courts have seen work at home as reasonable only in exceptional circumstances. Others have taken a more nuanced view.