United States: Reasonable Accommodation Of An Employee´s Disability - When Is The Employer Supposed To Act?

An employer's duty to offer reasonable accommodation to an employee with a known disability arises under the federal Americans with Disabilities Act as well as local and state laws prohibiting disability discrimination. Sometimes an employer's duty to explore the feasibility of accommodation is obvious. For example, when the employee's disability is obvious, when a disability is clearly affecting the employee's job performance, or when the employee requests an accommodation, the employer's obligation is triggered. But often, an employer's duty is unclear and may depend on the particular facts and circumstances of the situation. In addition, the requirements for employers may differ under federal and state law.

When is an employer's duty to engage in reasonable accommodation efforts triggered under the Americans with Disabilities Act?

Under the Americans with Disabilities Act ("ADA"), as well as virtually every state law, an employer is only obligated to reasonably accommodate the known limitations of an otherwise qualified disabled employee. In other words, an employer is not normally required to provide accommodation if the employer is unaware of the need or disability. According to federal regulations and the EEOC's Enforcement Guidance on Reasonable Accommodations and Undue Hardship, an applicant or employee with a disability must inform the employer of his or her disability and the need for an accommodation in order to trigger the employer's duty to explore accommodation.

The applicant or employee does not have to use any particular words such as "reasonable accommodation" or "ADA." Instead, the employee just needs to use "plain English" to let the employer know that some adjustment or change is needed because of a medical condition. Additionally, a family member, friend, health professional, or other representative may request the accommodation on behalf of an individual with a disability. Moreover, the employee's request for an accommodation does not have to be in writing.

Under the ADA, the obligation to engage in reasonable accommodation efforts is continuing - at least as long as the individual remains employed. In a recent decision, the Ninth Circuit, which covers Alaska, Washington, Oregon and California, held that if one reasonable accommodation fails, an employer still has an ongoing duty to explore other accommodations, including accommodations the employee may have previously rejected. Humphrey v. Memorial Hospitals Ass'n. In that case, Humphrey was diagnosed with obsessive compulsive disorder, which directly contributed to her recurring tardiness and absenteeism. In June 1995, the employer and Humphrey discussed accommodations and agreed on a flexible start-time arrangement. Despite the accommodation, Humphrey continued to miss work. On October 10, 1995, Humphrey was fired for tardiness and absenteeism. Humphrey sued claiming that her employer failed to reasonably accommodate her disability and terminated her because of it. The Ninth Circuit held that after the employer became aware that one accommodation had failed, it still had an affirmative duty to explore other reasonable accommodations, even ones the employee had previously rejected or which would be unsuccessful.

When does an employer's duty to accommodate arise under state law?

The requirements may differ from state to state, and there are far fewer cases under the state laws than under the ADA. However, some trends are becoming apparent.

Washington State

Under the Washington Law Against Discrimination ("WLAD"), the employer's duty to accommodate can arise before the employee requests an accommodation. Once the employer knows about the disability and knows that the disability is interfering with the employee's ability to perform the job, a Washington State employer is obligated to engage in reasonable accommodation efforts, even if the employee has not formally requested any accommodation. A recent Ninth Circuit Court of Appeals decision interpreting the WLAD is instructive. Downey v. Crowley Marine Services.

While employed, Downey was diagnosed with multiple sclerosis. Downey notified two Crowley supervisors of his diagnosis; however, he did not experience any MS symptoms until the 1995 season. By the end of the 1995 season, his supervisors believed Downey would not be able to return to work, even though Downey notified Crowley of his intent to return to work for the 1996 season. Downey resigned effective February 29, 1996. In 1998, Downey filed suit against Crowley claiming, among other things, failure to accommodate and wrongful termination under the WLAD. The claims were dismissed by the district court on summary judgment.

The Ninth Circuit reversed and remanded. The court noted that the Washington State law regarding reasonable accommodations differs significantly from the ADA with regard to what triggers an employer's duty to accommodate. Citing several Washington State courts cases, the Ninth Circuit held the Washington State law imposes a "heightened duty on employers in that simple notice of an employee's disability is sufficient to trigger an employer's responsibility to accommodate." An employee's failure to formally request an accommodation does not absolve an employer of its duty to accommodate an employee's known disability under Washington State law.

The Crowley decision does not change the duty to accommodate for Washington employers as interpreted by the Washington courts. Instead, Crowley provides a strong reminder that once a Washington employer knows of an employee's disability and becomes aware of the employee's inability to perform the employee's job duties, the duty to accommodate exists under the WLAD. Crowley also reminds Washington employers that the obligation continues even after the employee has terminated. This obligation under state law appears to be a greater obligation than that under federal law or even under most other state laws. Employers should also remember that the definition of what constitutes a disability is much broader under Washington law than it is under the ADA.

California

The California Fair Employment and Housing Act was amended effective January 1, 2001. It is now an unfair employment practice for an employer, in response to a request for reasonable accommodation by an employee or applicant with a known physical or mental disability or known medical condition, to fail to engage in a timely, good faith, interactive process with the employee or applicant. This interactive process is for the purpose of determining if any effective reasonable accommodation is possible.

An employer who knows of an employee's disability also has an affirmative duty to make known to the employee other suitable job opportunities with the employer and to determine whether the employee is interested in and qualified for those positions. This requirement exists if the employer can do so without undue hardship or if the employer offers similar assistance to other disabled or non-disabled employees or has a policy of offering such assistance to any other employees. Prilliman v. United Airlines, 53 Cal. App. 4th 935 (1997).

Oregon

An employer has a duty to reasonably accommodate an employee's physical or mental impairments. Oregon Administrative Regulation § 839-06-245. Neither the statute nor regulations specify what circumstances give rise to the duty to accommodate. However, in Braun v. American Int'l Health & Rehabilitation Services, Inc., 846 P.2d 1151 (Or. 1993), the Supreme Court of Oregon held that the duty to accommodate is triggered when the employee's performance deficiencies are suspected to be caused by a disability. However, under Oregon law there is no duty to accommodate based on mere suspicion of impairment if the employee denies the existence of a disability.

Alaska

An employer has an implied duty to accommodate an employee with a disability under the Alaska Human Rights Act, AS 18.80.220. See Moody-Herrara v. State, 967 P.2d 79 (Alaska 1998). However, there is no formal guidance as yet from the Alaska statutes, regulations, or courts regarding what triggers the duty to accommodate. Alaska courts have relied upon similar rulings under the ADA when interpreting that State's Human Rights Act.

Human Resources Practice Tips

• Employers should adopt a personnel policy that encourages employees who have medical conditions that limit their job performance to notify the employer so that reasonable accommodations may be explored. The policy should require such needs be made known to both Human Resources and the employee's supervisor/manager to assure an adequate response to a request for accommodation.
• After receiving a request for an accommodation, the employer should engage in an informal process with the applicant or employee (also known as the interactive process) to try to determine what possible accommodations the applicant or employee might need and the feasibility of any such potential accommodations.
• The interactive process should occur without delay, once the employer is aware of the need for accommodation.
• The employer may ask the applicant or employee for documentation from a health care or rehabilitation professional if (1) the disability and need for reasonable accommodation are not obvious or (2) the individual has not already provided sufficient information to substantiate the disability and need for a reasonable accommodation.
• If documentation is requested, the employer should
• summarize the essential functions of the job for the healthcare professional;
• request specific information needed to understand the nature of the disability and its functional limitations; and
• request the healthcare professional's suggestions regarding reasonable accommodations.
• If an employer knows about an employee's disability, either because it is apparent or because the employee (or someone else) has notified the employer of the disability, the employer should determine promptly whether it limits the employee's performance and what accommodations might be available so that the employee can effectively perform.
• If an employer suspects an employee's disability is interfering with an employee's job performance, do not ask if the employee has a disability. Instead, ask the employee if there is some reason why he or she believes that her or his performance is not meeting the employer's standards and whether there is anything the employer can do to help the employee satisfactorily perform the employee's job.
• An employer is not required to provide the particular accommodation that the applicant or employee has requested or prefers, so long as the accommodation that the employer is willing to provide is effective.
• An employer cannot require an individual with a disability to accept the accommodation offered by the employer, but if the applicant or employee rejects the offered accommodation, the employer may consider the individual to be deemed unqualified for the job.
• If one accommodation proves to be ineffective, the employer should re-engage in the interactive process with the employee and try to find a different accommodation, even if that means offering an accommodation that the employee previously rejected.
• An employer is not required to provide an accommodation if the employer can demonstrate that such accommodation would cause the employer an undue hardship. However, what might constitute an undue hardship will be determined on a case by case basis - and may be difficult for the employer to prove.

Summary

This Advisory focuses primarily on when an employer's duty to reasonably accommodate an applicant or employee's disability is triggered. This Advisory does not address when a particular accommodation may be considered unreasonable, what constitutes a disability, or what may constitute undue hardship to the employer. These issues are equally important and should not be forgotten by employers when dealing with an applicant or employee with a disability or need for a reasonable accommodation.

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