By Meghan Droste, June 17, 2020
How long is too long to wait? As with so many things that we do in the practice of law, the answer is: It depends. If we’re talking about morning caffeine, an hour might be too long for many of us. If we’re talking about seeing the new TV show that everyone is watching, a day or two might be too long, depending on how good your friends are with not spoiling things. And if we’re contemplating when to get a haircut, well, these days, a month or two might be OK. Context, and what we need, is really key in determining how long is too long.
Continuing our discussion of reasonable accommodation issues from last month, let’s figure out how long is too long to wait to provide an accommodation. Just like the above examples, context matters, and will determine whether there will be a finding that an agency is liable for a failure to accommodate because it waited to provide an accommodation.
The Commission considers five factors in deciding whether there was an improper delay: 1) the reason for the delay; 2) the length of the delay; 3) how much the employee and the agency each contributed to the delay; 4) what the agency was doing during the delay; and 5) whether the accommodation was simple or complex to provide. See Ruben T. v. Dep’t of Justice, EEOC App. No. 0120171405 (March 22, 2019).
So how long is too long? Two months can be too long when the accommodation is relatively straightforward. See Aldo B. v. Dep’t of Health & Human Servs., EEOC App. No. 0120172838 (February 21, 2019) (two-month delay in providing sign language interpreters). But three months can be OK if the agency has to order special equipment and the delay is because of the manufacturer and not because of the agency. See EEOC Enforcement Guidance on Reasonable Accommodation and Undue Hardship under the ADA, No. 915.002 (October 17, 2002) at Q. 10.
The key is to work as quickly as possible and to maintain good documentation of what the agency is doing to provide the accommodation. Not only will this help if there is litigation, but it will also help to ensure that you are accommodating employees in ways that let them perform their jobs as soon as possible. That will be a win for everyone involved. Droste@FELTG.com