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Accommodation of a disability

What happens when the employer resists a request for a job accommodation by a qualified handicapped employee, or stops negotiating?

I’ve written frequently on this blog about how a qualified handicapped employee can initiate a request for a job accommodation from the employer. If the request is properly phrased and supported with appropriate documentation, a good employer will engage in an open discussion with the employee about different accommodation options. This interactive process requires: (1) direct communication between the employer and employee to explore in good faith the possible accommodations; (2) consideration of the employee’s request; and (3) offering an accommodation that is reasonable and effective.

What happens though when the employer resists the request, or stops negotiating?

The employer’s duty to accommodate is a continuing duty that is not exhausted by one effort. The EEOC Enforcement Guidance notes that “an employer must consider each request for reasonable accommodation,” and that “if a reasonable accommodation turns out to be ineffective and the employee with a disability remains unable to perform an essential function, the employer must consider whether there would be an alternative reasonable accommodation that would not pose an undue hardship.”

The employer’s obligation to engage in the interactive process extends beyond the first attempt at accommodation. The obligation continues when the employee asks for a different accommodation, or where the employer is aware that the initial accommodation is failing and further accommodation is needed. This rule fosters the legal requirement for cooperative problem-solving.

An employer is not obligated to provide an employee the specific accommodation he requests or prefers; the employer need only provide some reasonable accommodation. The employer providing the accommodation has the discretion to choose between effective accommodations. The employer may choose the less expensive accommodation or the accommodation that is easier for it to provide.

While requesting a reasonable accommodation is the employee’s responsibility, the employer cannot place the whole burden of the interactive process on the shoulders of the employee. This is particularly true where the employer is aware that the employee has some form of cognitive impairment or mental health issue that impedes his ability to express himself. To determine the appropriate reasonable accommodation it may be necessary for the employer to initiate an informal, interactive process with the qualified individual with a disability in need of the accommodation

Pamela A. Smith
Law Office of Pamela A. Smith
233 Needham Street, Suite 540
Newton, MA 02464
617-969-2900

pam@pamsmithlaw.com

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