• Failure to Reasonably Accommodate Causes Employer to Lose Defense
  • June 18, 2014 | Author: Paul F. Keneally
  • Law Firm: Underberg & Kessler LLP - Rochester Office
  • In defending against cases brought by employees and ex-employees under the Americans with Disabilities Act (ADA), employers often raise the defense that the Plaintiff's condition was so serious that he or she could not perform the essential functions of the position even with the alleged reasonable accommodation. While this defense is a legitimate one, it was not sufficient, at least at the summary judgment stage, for the New York City Health and Hospitals Corporation (HHC) in a recent case brought against it under State and City law by an ex-employee who suffered from a disability brought on by inhaling asbestos.

    While the HHC was able to show in its summary judgment motion that the employee was at one point totally disabled such that he could not perform his job with any reasonable accommodation, the Court denied the motion because the employee had previously requested a respirator at work at a time when he alleged he still could have performed his duties with that accommodation. The Court specifically found that the employee would not lose his claim if it turns out that his attempt to persevere at work without the reasonable accommodation of a respirator caused his condition to worsen and become a total disability.

    Accordingly, the basic advice under the ADA remains that employers must carefully participate in the interactive process with disabled employees to discover if the requested (or another readily apparent) accommodation is reasonable and should be offered.