By Michelle De Oliveira, Esq. & Collin Murdock, Esq.
Encountering reasonable accommodation requests and employee disability disclosures appears inevitable; and employers of all sizes are destined to encounter these at one point or another. For this reason, having the preliminary roadmap below with important employer considerations is a sound business practice given the legal exposure that may result from inadvertent missteps along the way.[1]
Step 1: Employers Must Respond To A Reasonable Accommodation Request
The first step is that employers should appreciate the fact that they must respond to an employee’s or a prospective employee’s need for an accommodation when the employer is on notice of the need.[2]
Step 2: Employer’s Response Should Be Through An Interactive Dialogue
The second step is understanding that the employer’s response to an employee’s accommodation request must be via a dialogue with the employee (e.g., an interactive dialogue) so that the employer and the employee can explore the requested accommodation and whether the employer can accommodate it.
The interactive dialogue is required under both state (M.G.L. c. 151B) and federal law (the Americans with Disabilities Act)—and if there is a breakdown in the process or if an employer fails to engage in the interactive dialogue, it may trigger potential employer liability that is separate and apart from any potential disability discrimination and/or retaliation claims.
Step 3: Evaluate The Employee’s Ability To Perform The Essential Functions Of Their Job With Or Without An Accommodation
As the third step, employers should assess whether the employee will be able to perform the essential functions of their job with or without an accommodation. Indeed, an employee who requests an accommodation must establish, among other things, that they: (a) have a disability; and (b) can perform the essential functions of their job with or without the accommodation requested.[3]
As to the question of whether the employee has a disability, the employee must demonstrate that they: (a) have a physical or mental impairment that substantially limits one or more of their major life activities (e.g., working, walking, the ability to see, etc.); (b) have a record of such an impairment; or (C) are regarded as having such an impairment. Then, the employee must also establish that they can perform the essential functions of their job with or without the accommodation sought.
At this stage, reviewing the employee’s job description to distinguish between what is, and what is not, an essential function of the job is of paramount importance.
Step 4: Employer Must Grant The Reasonable Accommodation Request Unless It Would Create An Undue Hardship For The Employer
When / if denying a reasonable accommodation request, the employer has the burden of demonstrating that the accommodation would impose an undue hardship. This is a difficult burden to meet—although not impossible. More often than not, an undue hardship cannot be solely because of a financial hardship on the business, although that is certainly a factor to be considered. This is a fact-specific analysis, requiring consideration of, among other things: the employee’s position, the job duties and responsibilities, employer size, duration of accommodation sought, feasibility of extending the accommodation, and the impact on business operations.
To emphasize the importance of this process and related potential legal exposure, a few recent court cases are discussed below.
In a recent trial court decision, Buccieri v. Brewster Ambulance Service, Inc., a prospective employee alleged a disability discrimination claim, alleging that he was not hired for a Chair Car Driver position because he is deaf. The case proceeded to trial, which was bifurcated into two phases: liability and damages.
In the liability phase, the plaintiff (a prospective employee) proceeded with two theories, as follows: (a) failure to provide the accommodation; and (b) failure to engage in the interactive dialogue. The jury returned a plaintiff verdict, finding that the employer was liable for not having engaged in the interactive process. The trial court disagreed and overturned the jury verdict, holding that the employer was not liable for failure to engage in an interactive process because the employer and the plaintiff had in fact worked together to think through multiple potential accommodations, and the plaintiff was given opportunities to test some in practice scenarios. The employer ultimately determined that safety concerns relating to essential functions of the job made a reasonable accommodation impossible under the circumstances.[4] Only after exploring potential accommodations for the plaintiff did the employer determine that no reasonable accommodation was possible. Therefore, the employer fulfilled its obligation and was not liable for not providing an accommodation.
The employer’s actions in Buccieri are in stark contrast to those taken by an employer in MCAD, et al. v. Massachusetts Department of Children and Families. In that case, the employee (a social worker) learned that she had a brain tumor, was later diagnosed with Cushing’s disease, and experienced a series of medical complications. As a result, the employee requested accommodations, including, among other things, reduced hours, a reduced caseload, and additional breaks during the workday for medication and rest.
One day after receiving the employee’s accommodation request, the employer (DCF) outright denied the request, concluding that the request for accommodation meant that the employee was unable to perform essential functions of her job. DCF did not engage in an interactive dialogue with the employee and did not devote any time to considering the accommodations requested—and, as a result, the employee resigned from her job.
The employee then filed suit, alleging that DCF: (1) discriminated against her on the basis of her disability by failing to provide her with reasonable accommodation; (2) retaliated against her; and (3) constructively discharged her in violation of M.G.L. c. 151B.
The employee prevailed and was awarded damages for emotional distress and lost wages, plus interest at the rate of 12% per annum from the date the complaint was filed.
Unlike the employer in Buccieri v. Brewster Ambulance Service, Inc., DCF did not engage with the employee in response to the accommodation request and outright denied her reasonable accommodation request merely one day after receiving it. An action as such was fatal to the DCF’s defenses—and this case highlights the black letter law on point, which is that: an employer’s refusal to participate in an interactive dialogue violates applicable discrimination laws.
Key Takeaways
Employers should pause when faced with a reasonable accommodation request and ensure that they carefully assess and address the request to avoid (or at a minimum, minimize) potential legal exposure and liability.
What should follow on the heels of an accommodation request is a methodical and strategic approach, with documentation that the employer can use as ammunition to defend against a future disability discrimination claim, or a failure to engage in an interactive dialogue claim.
The reality is that it may be tempting for an employer to believe they already know enough about a role to quickly determine that no reasonable accommodation exists—but again, employers are encouraged to pause because engaging in an interactive dialogue with the employee to discuss an accommodation request is legally required, and although, possibly time-consuming and costly, it may shield employers from even more expensive litigation. Moreover, the process may uncover previously unconsidered ways to retain employees and save the costs and time of identifying, hiring, and training replacements. When responding to an employee’s accommodation request, employers are encouraged to work hand in hand with counsel to avoid inadvertent (and costly) missteps.
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[1] Please note that this is intended to provide a general roadmap, and it does not describe or discuss every important employer consideration. Employer considerations vary depending on the facts and circumstances and require a fact-specific analysis.
[2] Employer notice can be actual or constructive, depending on the circumstances.
[3] If alleging a disability discrimination claim, the employee would also have the burden of proof as to both of these factors.
[4] Safety concerns included, among other things, the prospective employee’s inability to communicate with patients and identify whether a patient needed help.