Necessary Steps Before Determining No Accommodation Is Reasonable

May 2, 2017

Topics: Disability and Leave Obligations

If there is no reasonable accommodation that an employer can provide to a disabled applicant or employee, then the employer is not required to provide assistance to the limitations imposed by the applicant’s or employee’s disability.

An employer, however, should have arrived at a determination that no accommodation suggested by the employee, or considered by the employer, is reasonable under the circumstances, only after the employer went through all the requirements of the interactive process (that process of exchanging information with the employee or applicant to determine what, if any, accommodation is feasible).

Employers should be mindful that the law places the burden of proving that no accommodation is reasonable on the employer. Therefore, the employer should carefully document the steps it took to arrive at that conclusion.

Under the law, the only way that an employer can prevail against a claim by an employee that the employer failed to provide him or her with a reasonable accommodation, is by showing that

(a) multiple possible accommodations were considered (even if rejected), including considering all accommodations suggested by the employee and his or her healthcare professional;

(b) the accommodations suggested/requested were found not to be reasonable when considering all factors, costs, efforts, impacts on other staff, etc.;

(c) the employer offered alternative suggestions and considered all the “usual” accommodations (e.g., schedule shifts; light duty; transfer to an available open position for which the employee was qualified, etc.) and did not just reject what the employee requested; and

(c) the employee’s proposed accommodations were unreasonable and would cause “undue hardship” to the employer.

The employer must examine each particular accommodation suggested by an employee to determine whether it is reasonable and if it would cause undue hardship on the company if implemented.  Even if the accommodation is clearly silly or outrageously expensive, the nature of the accommodation and the reasons it is not reasonable must be documented.  For example, an accounting employee in a chemical plant was allergic to fumes from the plant floor that travelled through the vent system.  Her requested “accommodation” was to re-do the ducting—at a price of many tens of thousands of dollars.  Although dismissed out of hand, and only “considered” for a few seconds – those seconds were time spent “considering” this option.  Thus, it was documented that this accommodation was requested, considered, and rejected as unreasonable (noting the expense was prohibitive).

Similarly, employers must consider whether there are any open positions for which the employee is qualified to which he or she could be transferred.  If not, there still should be a record indicating that no such positions exist either because the company has no open positions or because the employee is not qualified for the positions that are open.  In the latter case, identify specifics (e.g., “there are no open positions for which this warehouse employee could be transferred.  The only open position in the company is our Director of Marketing for which he is not qualified.”)

Accommodations offered, but rejected by the employee, should also be included in the documentation.

The employer’s obligation is to determine if there is a reasonable accommodation that can be provided that will not cause an undue hardship.  This documentation should show that the employer engaged in the interactive process, but that no accommodation could be provided that was reasonable.

Employers should consult with counsel at each step of the reasonable accommodation process to ensure legal obligations are satisfied and to ensure that the employer is complying with the requirements of federal, state and local laws.