When no accommodation is reasonable – next steps for the employer

October 2, 2017

Topics: Disability and Leave Obligations

Both state and federal disability discrimination law require employers to provide reasonable accommodations that assist employees to perform the essential functions of their job, as long as doing so does not impose an undue hardship on the employer. There are times, however, when the employee or applicant simply cannot be accommodated because there is nothing the employer can do that is reasonable or that does not impose an undue hardship that would enable the company to hire the disabled applicant or keep the disabled employee in his or her position.

Consider a company that makes down jackets and comforters, and one of its seamstresses discovers she’s allergic to feathers. She requests to work in a feather-free environment but has no other skills but sewing. There is no other job she can do for this company but sew pillows, jackets and comforters that are being stuffed with feathers. In this situation, there’s no other place she can work, so no accommodation that can be made that would separate her from the feathers.

The law places the burden of proving that no accommodation is reasonable on the employer. Therefore, employers who are attempting to accommodate disabled applicants or employees should carefully document the accommodations that were considered and why they are not reasonable or would have caused an undue hardship on the company. This includes documenting actions that were considered, even if only briefly. For example, noting in conjunction with the above that it was considered whether there were any open jobs to which she could be transferred for which she was qualified, but it was determined that there were none because sewing is her only skill set. The fact that the consideration was done is important to note.

The employer should maintain communication with the employee during the process to evaluate potential accommodations. The employee should therefore be aware that the company is not able to provide the various accommodations the employee requested, and generally why.

When it becomes clear that there is nothing that can be done, the employee who is included in the process should already be aware of that potential outcome. The final communication that there is no accommodation that can be provided should be delivered verbally, and then confirmed in writing. Employers are only required to employ employees who can perform their jobs. Because this person will not be able to perform their job, either with or without a reasonable accommodation, their employment can be terminated at this point, and that fact would be part of the verbal and then written communication. The employer should follow the usual procedures the company uses with any employment termination.

Employers should consult with counsel regarding their search for reasonable accommodations and documentation of the search, to ensure that they are complying with the requirements of federal, state and local laws and confirm that they have done what is legally required before letting a disabled employee go. In the event of a legal claim by the applicant or employee, having taken proper actions in the course of considering accommodations will be part of the company’s defense.