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Reasonable Accomodations – What are they and when are they required?

Recently, I have written about the “at-will employment” rule and some of its exceptions.  One of those exceptions is an employer’s obligation to provide “reasonable accommodations” to certain employees.  In my experience, this is an obligation that many employers — and, sometimes, employees and their care providers — fail to understand and implement properly.  So, what is this “reasonable accommodation” rule and who does it apply to?

The Americans With Disabilities Act (the “ADA”) and comparable state law protects “qualified individuals with a disability.”  If an employee is a “qualified individual with a disability,” then the ADA prohibits the employer from taking any adverse action against that employee (such as termination or demotion) based on the employee’s disability.  This is classic discrimination law and similar laws protect classifications other than disability (such as gender, religion, race, national origin and sexual orientation.)

 The ADA has another – and often misunderstood – requirement, however.  If an employee is a “qualified individual with a disability,” her employer also has an AFFIRMATIVE DUTY to reasonably accommodate that disability so that the employee can do her job, even if the accommodation requires the employer to incur an expense or provide something for the “qualified individual” that it would NOT provide to a non-disabled employee.

 An “accommodation” is essentially ANY modification that allows an employee to perform the “essential functions” of his or her job.  Examples include modifying physical facilities to accommodate a mobility issue or other physical impairment, or allowing an employee to take a temporary leave of absence or work a reduced schedule while receiving treatment for depression or another mental health issue. 

The employer’s duty to accommodate trumps any internal company policies.  For instance, an employer may have strict no-fault attendance or tardiness policies that provide for termination of employment after a fixed number of absences or tardies per year, regardless of the reason.  Or, the employer may have a mandatory overtime requirement that applies to all employees in a particular department or during particular times of the year.  Nonetheless, the employer may be required to excuse a disabled employee from these policies, and it is no defense that the employer does not similarly excuse non-disabled employees.  That is the point of a “reasonable accommodation” under the ADA – it must be provided to accommodate the disability and level the playing field for those individuals who can otherwise perform the essential functions of their jobs.

“Disability,” “qualified individual,” “reasonable accommodation” and “essential functions,” among other terms, have distinct legal meanings under the ADA.  Whether an individual employee is “disabled” under the ADA or otherwise a “qualified individual” depends on the employee’s particular impairment and the specific duties of that employee’s job.  Whether an accommodation is “reasonable” depends on still other factors, including the size and resources of the employer.  In disability discrimination and failure-to-accommodate cases, these issues are often vigorously contested.  Thorough development of the relevant evidence and proper presentation of these issues to a Court is critical to the employee’s success in a disability discrimination or failure-to-accommodate case.

Then again, if you were me, you would say that is where the fun begins. . .

Janie Lanza Vowles represents individuals and businesses in a variety of wrongful termination cases, including cases involving wages violations, gender, disability and other forms of discrimination, failure to accommodate, and retaliation.  If you have a question about this blog post or any other employment-related issue, feel free to contact Attorney Vowles to discuss your matter further.

15 Responses to “Reasonable Accomodations – What are they and when are they required?”

  1. david abbott says:

    I was fired for smoking in the work truck. there is no policy included in the employee handbook. I did not sign anything acknowledging this policy. No verbal discussion ever took place relative to this. Ironically I was injured on the job 2 weeks earlier. I had filed an incident report after the injury. Also went to urgent care for treatment. I was put on restriction by the doctor at that time. No effort was made to provide for my restriction. I continued to work because I need the money. A week later the injury was worse. I told my immediate boss I was unable to perform all functions of my job because of the pain. The next morning I was fired.

    • JLV Law says:

      David – I may be able to help. You should contact me directly at the office (978/534-9771) so that we can discuss this further. Thanks for your comment. Regards, Janie

  2. John Moschetti says:

    Hi there,
    I am supervisor in a NYC school. I recently hurt my knee while walking out of the school. I showed up after my injury with a note from the doctor for an accomodation to bring my classess downsatirs instead of walking up and down stairs. In addition, I requested to transfer to a building with an elevator since my building has no elevator and I teach on the fourth floor. My principal said that “if I dont go up the stairs she can not support me”. I was fearing for my job and I did finally go up the steps. Since then I have had more problems with my other knee and my neck. A few days later I got letter that I was insubordinate and deriliction of duty over inaccurately marking a student absent. In addition, I found out on my own that I could have filled a special form on line through the department of education medical division for accomodations. I went through many heads of the department yet nobody had this information for me. I have been ignored by many. Only the union has written me back. However, they too failed to tell me this.I beleive I am being targeted in retaliation because of my disability.

    • JLV Law says:

      John:

      My practice is in Massachusetts and New Hampshire, but I would suggest that you contact an attorney in New York that handles plaintiff/employee-side disability discrimination matters.

      I wish you the best of luck, and thank you for reading the blog.

      Regards,

      Janie

  3. nero jackson says:

    I just list my job I got hurt at home and I’m going to have knee surgery in January and I was able to go back to work under restriction I took the doctor slip to my work and they fired me for not being able to do my job what can I do

    • JLV Law says:

      You need to speak to an employment attorney immediately. My practice is in Massachusetts and New Hampshire, and I would be happy to speak with you if you were employed in either one of those states. Otherwise, contact an employment attorney in your state right away. Here is my contact information. http://jlvlaw.com/contact.html

      Regards,

      Janie

  4. Tanya says:

    Recently, my employer threatens to terminate me if I didn’t accept the night shift position. I have work day shifts for years before my work related injury, they claim that this was a job offer based on my restrictions and they can fire me. I told them that I have a child with serious health issues and can’t be left alone at nights, my employer said that these were my personal problems and if I refuse any job offer I WILL BE TERMINATED, can they do this?

  5. Vanessa Lee says:

    I had ACDF surgery on 04/3014 and was released on 07/01/14 w/ restrictions. Submitted to my employer who blatantly said no to the accommodations w/ no explanations. I sat home from that point until my FMLA until 07/30/14. I was sent a letter dated 07/21/14 informing that a dialogue would start surrounding accommodations. My doctor completed the job task assessment and informed them I could perform my job w/ restrictions. I have been re-evaluated on 08/11/14 with only 3 of the 6 prior restrictions. Employer did not respond to this 2nd request until 08/19/14 informing me I’d be getting an option letter to resign or be terminated. I’ve filed EEOC & MCCR charges against them for discrimination. What else can I do?

  6. justme says:

    doctor just wrote an order stated I should not be standing for more than 4 hrs in a day. I am a cashier where I have been doing constant standing and my back cannot take it. must the employer at the very least provide me a chair or only schedule me for 4 hr shifts? while i have had a bad back it has been agrivated by the constant standing on bare concrete floors.

  7. Dre says:

    I have OSA and have explained this to my employer on numerous occasions. Now at times I find myself nodding or dozing off without doing it intentionally. I do everything in my power to keep myself awake but there’s those days where good isn’t good enough. Now I work in a call center environment and I can do my job functionally without it hurting me I feel but the “acting supervisor” is starting to threaten me and have someone spy on me when she leaves early. What accommodation can I ask for? What can I do about this ? In this day and age it’s hard to come by a decent job and I can’t afford to lose my job.

  8. JLV Law says:

    I have received a lot of great comments recently in response to this post. Many of those comments specify the state in which the writer was/is employed. The blog is intended to provide general information, and is not a confidential setting in which I can provide legal advice specific to individual circumstances. Many of you should speak to an employment attorney immediately, however.

    My practice is in Massachusetts and New Hampshire, and I would be happy to speak with you if you were employed in either one of those states. Otherwise, contact an employment attorney in your state right away. Here is my contact information. http://jlvlaw.com/contact.html

    Thank you again for reading the blog.

    Regards,

    Janie

  9. Holly Emery says:

    I am doing some research for paper and am hoping you can assist me. The scenario would be more for an employee with a non-physically apparent need like a broken arm or such but an internal or mental issue causing the disability, this would create a need for a specific discussion with the employee and possibly treating doctor as to what accommodations would allow the employee to perform the essential duties. So would the disabled employee have to ask for an accommodation from the employer, or is the employer required to offer and explore the “reasonableness” of the accommodation(s) needed with the employee?

    Say because of the non-physical impairment, the employee is unaware that accommodations are possible in their given situation, like additional breaks, or a quieter workspace away from constant distractions, etc. If the burden is on the employer and no offer or mention of accommodations takes place, and the disabled employee is then discharged specifically because FMLA/benefit time is exhausted and they are still not released by their doctor to return to work without restriction and it is only after discharge the employee learns of reasonable accommodations under ADA, does the employee have any recourse in that type of situation?

    Or is not knowing your rights not an excuse, much like a speeder saying they shouldn’t get a ticket because they didn’t see the speedlimit sign…too bad it was posted, not the officer’s fault they did not see it?

    This is just regarding the way the ADA is apllied/enforced, not state specific.
    I apologize for asking questions than may very well be mute points depending and the answer to my first question but wanted to be prepared. I look forward to a response. Thank you for any assistance and for having this blog as a knowledge base for the internet at large. :)

  10. Sharron Elizabeth Kilburn says:

    I’m a salaried employee. I work 10 hour shifts but am pregnant and had severe morning sickness and the fact that all my babies were born prematurely to some degree… My doctor switched my shifts to 6 hours. I was working 11-5. I told my boss when I was switched that I need to take nausea MeDS that I can NOT drive on at dinner time. Now she has me on a 630-1230/1 am closing shift. The hardest in the store and its impossible to take my medicine!.. she has written me up for being late when I was sick as well. Not sure what to do. I’m sure the shift change was retaliation.

    • JLV Law says:

      Thanks again for the comments and questions. Readers should remember that the blog comment section is not the place for me to provide confidential legal advice about your specific situation. You should speak privately to an attorney about your individual circumstances. For those of you who were/are employed in Massachusetts or New Hampshire, you should feel free to contact me directly. http://jlvlaw.com/contact.html Otherwise, you should immediately contact an attorney in your state that handles plaintiff/employee-side disability discrimination claims. Best of luck, and thanks again for reading the blog.

      Regards,

      Janie

  11. Christina Valasquez says:

    I was fired today for i have stated in interview that i had a special needs child and i was tardy 4 times and they said it was 7 times also i was out for a week due to sciatica nerve and had doctors notes. I was released with restrictions to rturn to my job and was called in today to bring my doctors notes and was given my parting papers and not given a chance to make a comment.is that legal to do.

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