Virtually all are aware that employers have a legal obligation to provide a reasonable accommodation (that is, some modification to where, when or how the work is to be done) to qualified employees or applicants with disabilities that will allow the person to perform the essential functions of the job, unless the requested accommodation would pose an undue hardship on the business.
Legalities aside, when an employee comes in and says he has a disability and needs some type of assistance to do his job, the employer’s initial reaction generally is one of compassion and a desire to help.
However, the negotiations over just what accommodation is to be provided — and whether a particular request is “reasonable” — can become complicated and contentious, sometimes because an employee will not accept anything other than precisely what he has requested (or, in the employer’s view, demanded), and sometimes because the employer suspects that other, performance-related issues are lurking in the background and an after-the-fact request for an accommodation merely is an attempt to distract from those issues.
Indeed, more and more employees are bringing claims alleging that their employer failed to provide a reasonable accommodation for their disabilities. These claims are somewhat peculiar in the employment litigation field in that the employee does not need to prove that the company intended to discriminate against him on the basis of disability, but rather only that the employee had a covered disability known to the employer, that a reasonable accommodation existed that would have allowed the employee to perform the essential function of his job, and that the company did not provide the accommodation.
Thus, even without allegations of a “bad motive,” a company may find itself mired in a legal battle over whether it should have provided some accommodation to a disabled employee to allow him to perform his job.
While every reasonable accommodation negotiation is unique and involves different dynamics, there are ways a company can guard against a request for reasonable accommodation devolving into time- and energy-consuming litigation.
The following are tips that a company should keep in mind when approaching and conducting negotiations over providing a reasonable accommodation to an employee.
Be prepared. Above all, the company must approach any reasonable accommodation negotiation with a solid, and supported, understanding of the core functions of a position, because an accommodation that would fundamentally alter or waive any of those core functions is, by definition, not “reasonable.” (For example, a company does not have to exempt an employee from performing key job functions or reassign those key job functions to other employees as an accommodation to a disabled employee.)
While a written job description often is helpful in setting out the core functions of a job, the realities of the modern business world — in which job descriptions frequently become outdated as organizational needs evolve and employees multi-task to support several aspects of a business — require a deeper analysis.
In short, the company should ask itself questions such as: “Why does this job exist?” and “What do we need this position to produce?” The answers to those questions will establish the framework for the accommodation discussions.
Be prompt. Requests for accommodation often can create a sense of anxiety, between both the employee making the request and management addressing the request. To avoid further buildup of that anxiety, a company should address requests for accommodation as promptly as possible, generally within a few days or weeks, as opposed to months.
Delays, even if an understandable byproduct of the fact that the work of the business must continue, or that the employee has not provided all the information needed to reach a decision on the accommodation request, can breed distrust and accusations of uncaring from an employee, which in turn could poison the negotiations on both sides.
On the other hand, addressing an employee’s request for accommodation quickly can foster a sense of trust and appreciation on the part of the employee, which in turn may benefit the organization.
Be patient. Often, a reasonable accommodation dialogue is just that — a dialogue. Both the employee and management will have opinions on how things should work, and those opinions will differ at times.
Bear in mind that an employee is not entitled to the exact accommodation he may initially ask for, even if it is feasible; an employee is entitled to a “reasonable” accommodation. That is, if a different accommodation would better serve the company’s business objectives and also address the employee’s functional limitations, providing that alternative accommodation will satisfy the company’s legal obligations.
Where the company and the employee diverge on what accommodation is most appropriate, however, it is crucial for the company to allow the process to play out and to resist the desire to cut the discussion short out of exasperation, even when presented with an intransigent employee.
For example, when initial discussions fail to result in an agreement on an accommodation to be provided, an employee may subsequently come forward with several other alternative requests. The company should consider and address each of the requests based on its own respective merits, rather than simply rejecting the new requests out of hand in the hope that the employee will accept the company’s original proposal.
A judge or jury reconstructing the dialogue during litigation will have the benefit of 20/20 hindsight: being able to show that the company went the extra mile to foster an open dialogue and to try to make an accommodation work can be invaluable to defeating a failure to accommodate claim.
In short, the company will want to show that it approached the dialogue in good faith and made every effort to address the employee’s concerns, but the parties were unable to reach an agreement on an accommodation because of the employee’s unwillingness to come to a reasonable compromise.
Communicate. As with nearly all employee relations matters, communication is key in a reasonable accommodation dialogue. Clear, regular and written communication will help refine and crystallize the employee’s request as well as the company’s business needs (and could provide invaluable evidence to combat a later claim from the employee that the company was not discussing accommodations in good faith).
In addition, employees who believe they are being heard and are having their concerns taken seriously will be less likely to find fault in the company’s processes. Similarly, when the company communicates the reasons for its decision and provides objective, business-related reasons to explain that decision, employees may be more likely to accept those decisions, even if they do not necessarily agree with them.
For purposes of the reasonable accommodation dialogue, communications should remain job-focused; after all, the purpose of the dialogue is to try to develop an accommodation that will allow the employee to perform his job.
The company should explain to the employee as clearly as possible the business reasons why a certain request may not be feasible, or why an alternative accommodation put forward by the company can be a win-win for both.
Decide. As with all things in life, a reasonable accommodation dialogue must come to an end at some point. In many cases, the dialogue will come to an end quickly, as a reasonable accommodation will be readily apparent and easy to implement.
Even in the more difficult cases, however, the company must decide at some point what accommodation, if any, it will be able to provide among the alternatives that are then being discussed, and it must communicate that decision to the employee.
Though the company will always want to remind the employee that the door remains open for future, alternative requests (indeed, the legal obligation to provide reasonable accommodation does not cease once a certain accommodation is granted; if there are other, different requests in the future that may address the employee’s limitations better, the company will be obliged to consider them), it must at some point decide on, and implement, an accommodation for the employee.
Of course, following these tips will not guarantee that every reasonable accommodation negotiation will go smoothly, but they can help mitigate risk to the organization and prepare the company to defend against accusations from a disappointed employee.
Robert G. Young II, a labor and employment lawyer at Bowditch & Dewey, litigates disputes in state and federal court, as well as before administrative agencies. He also counsels clients in matters outside of litigation. He practices out of the firm’s office in Framingham, Massachusetts.