May 1998

Who Determines "Reasonable Accomodations?"

QUESTION:

I know that the law requires me to provide some kind of accommodation to current or prospective employees with disabilities, but who gets to determine whether a given accommodation is "reasonable" or not; the employer or the employee?

ANSWER:

Both.  The law mandates an "interactive process" between the employer and the employee which, optimally, will result in agreement between the two parties.  When no agreement can be reached, courts will review the circumstances involved in this "interactive process" and determine which party failed to make a good faith effort to arrive at a reasonable accommodation.

BACKGROUND:

Under the Americans With Disabilities Act ("ADA"), employers are required to accommodate those employees or prospective employees who qualify as "qualified individuals with a disability."  While the issue of whether a given person or condition will qualify under the ADA will usually depend on the facts of each distinct situation, the question of whether a particular accommodation is "reasonable" can often be even more fact-intensive.

Once an employee's disability and need for accommodation have been identified, the employer and the employee are obligated to cooperate with each other in a good faith effort to determine what an appropriate accommodation should include.  (Note: the employer is not required to select the "most reasonable" accommodation or even that accommodation desired by the employee; only a "reasonable accommodation" is required).  Where the cooperative process breaks down and the employee pursues legal remedies through litigation, the question of good faith becomes crucial.  If the court determines that the employer did not cooperate in good faith, the employer could be held liable for violation of the ADA.

Because most employers have no intent to discriminate against employees for this or any other improper reason, the key is to conduct the discussions in a straight-forward fashion which clearly shows the employer's good faith.  Several key steps to follow include:

ƒ Meet with the individual in need of accommodation to determine the scope of the condition and any physical or mental limitations it may require.  This investigatory phase will often include learning more about the condition via reference materials or the individual's physician.

ƒ Discuss alternatives with the individual, and be prepared to consider proposals from the employee, even if you do not feel that a particular suggestion is "reasonable."  Out-of-hand rejections can often give the illusion of bad faith negotiating.  By discussing the employees specific desires, an employer can avoid claims down the road of "If you had only provided a(n)  _____________, there would have been no problems."

ƒ Always give a specific reason for rejecting or modifying an employee's suggestions.  Remember: cooperation is the key.

ƒ Document! Document! Document!  Make sure that all major offers or discussions with the individual are clearly memorialized on paper.  Avoid the situation down the road where the employee says, "I agreed that I would work part-time, but only because the agency promised to provide an ergonomic chair."

 

If you have any questions about specific disabilities and/or proposed accommodations, please call the CSRMA Employment Practices Hotline for advice tailored to the individual scenario.

The CSRMA Employment Hotline provides free legal advise to all CSRMA members on various employment issues.  For more information on the hotline please call Lynn Lieber with Fisher & Phillips at (650)592-6160.