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As the authoritative force in Employment and Labor Law, we, here at Miletti Law®, are committed to the continued updating of our series with fresh, verifiable, and credible content, which looks to not only educate, but also deliver in a manner that only Miletti Law® can. In that spirit, this blog is Part IV of our series on “Disability Employment Discrimination Defense Checklist for ADA Claims,” through which we aim to provide you with a hands-on guide on the checklist of issues that you or your defense counsel may consider when defending against a disability discrimination claim brought forth under the Americans with Disabilities Act of 1990 (ADA) (42 U.S.C. § 12101 et seq.). In Part III of the series, we hammered on the checklist of issues you may consider when defending against “Disparate Impact Claims.” Accordingly, as we move forward the discussion, we are not going to look into the checklist of issues to consider when defending against claims of failure to reasonably accommodate disabilities under the ADA.

Failure to Reasonably Accommodate Claims Defense under the ADA

As we mentioned in Part III, if no undue hardship is being imposed by the accommodation on the employer’s business operations, then the employer is obligated to make reasonable accommodations to the applicant or employee’s known limitations by the ADA. Otherwise, employers are not required. However, many times, employees or applicants will make claims that you, as the employer, has failed to reasonably accommodate their disabilities. When you find yourself in such a position, you must have a checklist of issues that you or your defense need to look into so that you can defend against such claims. Some of these issues include, but not limited to:

Possession of an accommodation request notice. Under this issue, you should assess whether the employee or application provided you with an accommodation request notice. As provided for by the ADA, if they were not provided with a notice for the applicant or employee’s accommodation needs, then employers will not be liable. The circumstances under which an employer has such a notice include when:

  • The disability is known to the employer
  • The disability is obvious
  • An employee specifically requests an accommodation

Engagement in the interactive process. Here, you may need to assess whether you engaged in the interactive process with the applicant or employee. During the interactive process, which the employer must engage an applicant or employee in, the former and the latter discusses the terms and possibilities of the requested accommodation. Employers are expected to participate, in good faith, in the interactive process and demonstrate the same by:

  • Documenting the interaction or dialogue the employer and the applicant or employee had when discussing the requested accommodation.
  • Responding to the employee or applicant’s requests promptly.

The reasonability of the requested accommodation. As we have mentioned in our past blogs on this series, a requested accommodation should be reasonable. Under the ADA, applicants and employees are not entitled to accommodations that impose undue burdens for employer. Further, applicants and employees are also not entitled to their preferred accommodations.

Reasonable accommodations may include, but not limited to:

  • Reassignment to a vacant position.
  • Providing or extending a leave of absence, providing qualified readers or interpreters, modifying or adjusting training materials, examination, and/or policies.
  • Assigning the nominal job function to another employee.
  • Ensuring that existing facilities used by employees are usable by and readily accessible to individuals with disabilities.
  • Modified or part-time work schedules.
  • Modifying existing or acquiring new devices and/or equipment.

Accordingly, a reasonable accommodation, as provided for by the ADA, is one that permits the person with a disability to:

  • Meet a qualification standard for the position.
  • Perform their job’s essential functions in a way that enables them to enjoy equal privileges of employment, benefits, and employment opportunities.

The applicant or employee’s ability to perform their job’s essential functions with or without accommodation. Logically, an applicant or employee’s “failure to accommodate a disability” claim is bound to fail if the applicant or employee is unable to perform an essential job function, even with an accommodation. This is why you should evaluate the applicant or employee’s ability to perform their job’s essential functions with or without accommodation.

NOTE: as it has been ruled by courts in the past, it is NOT the ADA’s requirement for an employer to accommodate by exempting an applicant or employee from their essential job function.

Potential defenses to accommodation claims. This is a very crucial issue of consideration in this checklist. Here, you may evaluate the applicability of a number of defenses to the employee or applicant’s failure to accommodate claims. Such defenses include, but not limited to:

Refusal of accommodations. It is not mandatory for a person with a disability to accept the accommodation offered by the employer. However, as provided for under 29 C.F.R. § 1630.9(d), such a person will not be deemed a qualified individual under the ADA if they reject a reasonable accommodation that would permit and enable them to perform their job’s essential functions.

Undue hardship. Under the ADA, any accommodation that imposes an undue hardship on the employer should not be provided to the requesting employee or applicant. In order to determine the possibility of a reasonable accommodation to cause an undue hardship, employers must look into factors that include:

  • The cost and nature of the accommodation.
  • The accommodation’s impact upon the businesses’ ability to conduct business and operations.
  • The entire financial resources of the business or company.
  • The financial resources of the business or company.
  • The main functions and structure of the business or company.

Direct threat. Finally, you may need to evaluate the possibility of a direct threat to the safety or health of other people in the workplace being imposed by the person requesting the accommodation, because employers are not obligated to accommodate any applicant or employee who poses such threats. In this case, some of the issues to consider include:

  • The likelihood that the potential harm will occur.
  • The imminence of the potential harm.
  • The duration of the risk.
  • The severity and nature of the potential harm.

In Part V of this series, we will hammer on the checklist of issues to consider when defending against harassment claims brought forth under the ADA.

Until then, stay tuned for more guidance and counsel. In the interim, reach out to us at the Contact Us page for answers to your questions and/or comments and business legal representation.

Always rising above the bar,

Isaac T.,

Legal Writer & Author.