The Americans with Disabilities Act (“ADA”) provides that an employer has impermissibly discriminated against an employee claiming a disability where the employer has not made “reasonable accommodations to the known physical or mental limitations of an otherwise qualified individual with a disability.” It has been held that an employee with a recognized disability who contends that he can perform the job “with a reasonable accommodation” has the prima facie burden of showing that the employer has refused the requested accommodation. If that occurs, the employer must persuade the court that such accommodation would create undue hardship.
The law is clear that an employer to whom an employee raises the issue of a disability and requests a reasonable accommodation must engage in meaningful discussions with the employee as to the proposed accommodation. The EEOC reiterated recently that an employer has an “affirmative duty” to engage in this interactive process with the employee.
To comply with this “affirmative duty,” an employer would be wise, therefore, to understand the employee’s medical situation, decide whether the employee can perform the job with a reasonable accommodation, and open communications with the employee to see if they can come up with a reasonable accommodation that does not create undue hardship.
A recent federal appellate case arising out of Connecticut is illustrative of just how far an employee can push to get a requested accommodation deemed reasonable. In Theilig v. United Tech Corp., the employee claimed because he suffered from severe depression, he needed to work from home for two months with “no direct person to person contact and definitely none with his previous co-workers.”
The court noted that what is reasonable is determined on a case-by-case basis, but that there is a burden on the employee to show, at least facially, that the costs of the proposed accommodation do not clearly exceed it benefits. In this case, stated the court, the employee did not meet this burden of showing that his was a reasonable accommodation, and, therefore, the employer was not required to engage in an interactive process with the employee.