By Deryn Sumner

Last week I joined Ernie Hadley and Gary Gilbert for FELTG’s twice-annual open enrollment session, EEOC Law Week in Washington, D.C. On Wednesday, we walked through disability discrimination law, the various theories that can be applied to these claims, and the obligations employers have to accommodate employees with disabilities.

As Ernie and Gary like to say, there are no points awarded for creativity in analyzing disability discrimination claims. First, the employer must determine if the employee is an individual with a disability by establishing he or she has a medical condition which substantially limits a major life activity.  Since the passage of the ADA Amendments Act more than six years ago, this is not an onerous standard for employees to meet.  Next, the employer must determine if the employee is qualified to perform the essential functions of the position with or without an accommodation.  If the employee meets these criteria, remember that an employer must provide an accommodation unless providing the accommodation would pose an undue hardship to the employer.

Based on some of the questions we received during the sessions and the breaks at EEOC Law Week, I wanted to talk a bit more about this requirement that the employer provide an accommodation.  Sometimes in response to a request from an employee for accommodation, the initial reaction is to conclude that the accommodation requested is not reasonable.  That then leads to the decision to argue that it would be an undue hardship to provide the requested accommodation.  And that is going to land the agency in hot water for failing to accommodate the employee.  Instead of focusing on arguing whether the accommodation requested by the employee might pose an undue hardship, agencies should instead focus on how an effective accommodation can be provided.

Recall, at this point, the agency has already determined that the employee is qualified to perform the position with or without accommodation.  So, the employee can perform the job and the question turns to what accommodations the agency can provide.  The law is clear that the employee does not need to be provided with the accommodation of his or her choice, but merely an effective accommodation.  So instead of preparing to argue as to how the requested accommodation poses an undue hardship, the agency should engage in the interactive process and figure out what the agency can reasonably do to allow the employee to perform the essential functions of the job.  Don’t focus on how the employee’s requested accommodation is unreasonable; look to what effective accommodations can be provided.  This is the part of the process where creativity is encouraged.  Different accommodations work for different people with different medical conditions working in different positions.

And a final reminder: undue hardship is a defense to a claim of disability discrimination and should not be asserted without being very confident that it really would be an undue hardship to accommodate the employee.  The Commission’s regulations at 29 CFR 1630.2 state the factors that should be considered in such an analysis:

  1. The nature and net cost of the accommodation needed under this part, taking into consideration the availability of tax credits and deductions, and/or outside funding;
  2. The overall financial resources of the facility or facilities involved in the provision of the reasonable accommodation, the number of persons employed at such facility, and the effect on expenses and resources;
  3. The overall financial resources of the covered entity, the overall size of the business of the covered entity with respect to the number of its employees, and the number, type and location of its facilities;
  4. The type of operation or operations of the covered entity, including the composition, structure and functions of the workforce of such entity, and the geographic separateness and administrative or fiscal relationship of the facility or facilities in question to the covered entity; and
  5. The impact of the accommodation upon the operation of the facility, including the impact on the ability of other employees to perform their duties and the impact on the facility’s ability to conduct business.

Proceed down this path at your own risk.  Instead, if the accommodation requested by the employee is not feasible, the agency should focus on what alternative effective accommodations can be offered to allow this employee to perform his or her job. Sumner@FELTG.com

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