By Kathleen J. Jennings (firstname.lastname@example.org)
[Have you listened to the Cover Your Assets Labor and Employment Podcast? Listen to it here!]
The Americans With Disabilities Act (ADA) prohibits discrimination against persons with disabilities. What sets it apart from other anti-discrimination statutes is the requirement that an employer provide reasonable accommodation to an employee or job applicant with a disability, unless doing so would cause significant difficulty or expense for the employer. [Title VII does require some reasonable accommodations for persons with closely held religious beliefs, but the standard is slightly different.]
So what is a “reasonable accommodation?” It is the stuff of much litigation, for starters.
The EEOC tells us that a reasonable accommodation is any change in the work environment (or in the way things are usually done) to help a person with a disability apply for a job, perform the duties of a job, or enjoy the benefits and privileges of employment. Basically, the determination of what is a reasonable accommodation must be made on a case-by-case basis through what is known as the interactive process–a conversation between the employer and employee about what accommodation(s) would help the employee perform the job and the impact on the employer if it provided such accommodations. And I shouldn’t have to tell you–document every step of that process.
It is important to note that an employer doesn’t have to provide an accommodation if doing so would cause “undue hardship” to the employer. Undue hardship means that the accommodation would be too difficult or too expensive to provide, in light of the employer’s size, financial resources, and the needs of the business. An employer may not refuse to provide an accommodation just because it involves some cost. An employer does not have to provide the exact accommodation the employee or job applicant wants. If more than one accommodation works, the employer may choose which one to provide.
A recent example of a requested accommodation that was simply not reasonable comes to us from Utah. In Anderson v. Zions Bancorporation N.A., No. 2:19-cv-00771, 2022 BL 66589, 2022 Us Dist Lexis 35716 (D. Utah Feb. 28, 2022), the plaintiff alleged that his former employer violated the ADA by denying his request for a reasonable accommodation, retaliating against him, and wrongfully terminating him after he requested a leave of absence due to depression and anxiety. The plaintiff requested almost one year of continuous leave as an accommodation for his mental health issues, and the employer found such a lengthy amount of leave to be an undue hardship. The court agreed.
We have seen other cases where employees seek leave without any end point, and such indeterminate leave is also considered to be an undue hardship for an employer.
If an employee requests leave as a reasonable accommodation, it is important for the employer to nail down exactly when the employee expects to come back to work. (As an aside, you should also determine if FMLA applies). If the employee doesn’t tell you, ask! Give them a deadline to provide the information. Then determine if the amount of leave is reasonable or presents an undue hardship. How long can you keep this job open? How long can other employees cover for this person?
If the employee does not come back on the anticipated date, the employer should follow up and determine if the employee is ever going to come back to work. If they don’t respond, they have essentially abandoned the job.
And speaking of FMLA, if an employee does not come back to work at the expiration of FMLA leave, it is generally not a good idea to terminate them immediately. Because if the reason that the employee needs the leave is because they have a disability, then the the ADA will apply and you need to commence the interactive process to determine if they need a reasonable accommodation, such as more unpaid leave.
This can get pretty complicated, so it is best to talk these issues over with trusted employment counsel.
Kathleen J. Jennings is an attorney licensed to practice law in Georgia and New York. She graduated from Cornell University, College of Arts & Sciences, with distinction and New York University School of Law. She is a principal in the Atlanta office of Wimberly, Lawson, Steckel, Schneider, & Stine, P.C. and defends employers in employment matters, such as sexual harassment, discrimination, Wage and Hour, OSHA, restrictive covenants, and other employment litigation and provides training and counseling to employers in employment matters. She can be contacted at email@example.com.
Copyright 2022 by Kathleen J. Jennings
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