Dexter, the emotional support peacock, became an overnight celebrity when an airline would not accommodate a passenger’s request that her bird accompany her on a flight from New York to Los Angeles. While some of us shook our heads about the unusual request, it does serve as a reminder that people have different ideas about what is reasonable. It’s a distinction that’s especially important to employers as they handle requests for reasonable accommodations for disabled workers.
Under the Americans with Disability Act (ADA) and some state laws, employers are required to adjust or modify their jobs and the workplace to accommodate workers with disabilities, provided those modifications are reasonable.
Below are three questions I recently received through the Member Action Center that illustrate the balancing act employers must do when dealing with employee accommodation requests.
What if I don’t think my employee is disabled or disabled enough to need an accommodation?
I get it. Most employees just want to do a good job, but one or two will make you roll your eyes every time. But, as an employer, you’re sailing in dangerous waters if you try to dispute someone’s disability.
If you have doubts about the employee’s condition, ask them to provide medical documentation. But be aware, the ADA defines a disability pretty broadly: the law says it’s a condition that “substantially limits” an individual’s ability to participate in a “major life activity.” Examples of major life activities include seeing, hearing, talking, standing, concentrating, thinking, communicating, and interacting with others. The regulations are clear that this list is “non-exhaustive.”
In other words, most of us probably have some type of a disability.
My employee has asked for some non-conventional accommodations, such as burning essential oils at her desk to open her sinuses and avoid migraines. Do I have to accommodate this?
You don’t have to automatically accept the employee’s first request, but you do have to work with her to try to reach a good solution. (The legal term is, “engage in an interactive process.”) Again, you can ask for a doctor’s note and even do a trial run to test the impact of the accommodation on the rest of your workers. In the instance of the employee requesting essential oils, the employer could ask if a humidifier that does not emit any odors can get the same results.
It’s especially important in cases like these to have a written accommodation policy and follow it consistently. Policies like these are a roadmap in dealing with both common and unusual requests.
I’ve engaged in the interactive process and I simply cannot make an accommodation. What now?
You are not required to make an accommodation if it would impose an “undue hardship.” While this sounds relatively straightforward, it can be very difficult to prove, especially in front of a jury who sees themselves as no different as your employee. Undue hardship means the accommodation would result in significant difficulty or expense for you and takes into account the nature and cost of the accommodation in relation to the size, resources, nature, and structure of your operation. The bottom line is that if there is any way to make the accommodation, the law says you should.
Need a deeper dive? Attend our Reasonable Accommodations Seminar on April 24 at iPlay America in Freehold. You can click here to register. Or, contact NJBIA’s Member Action Center at 1-800-499-4419, ext. 3 or email@example.com.