Editor’s Note: The following article by Neha Patel was published as part of the New Jersey Labor and Employment Law Quarterly Vol. 40, No. 3, which is distributed to members of the Labor and Employment Law Section. To learn more about joining a section of the New Jersey State Bar Association, email us at [email protected].
Under the Americans with Disabilities Act and its amendments1 and the New Jersey Law Against Discrimination,2 employers are required to provide reasonable accommodations to applicants and employees with disabilities, absent a showing of undue hardship.3 Reasonable accommodations are modifications or adjustments that enable disabled individuals to be considered for employment, to perform the essential functions of their position, and/or to enjoy equal benefits and privileges of employment.4
In order to identify suitable accommodations, employers and employees must engage in an interactive process.5 The interactive process involves gathering information about an employee’s disability and associated functional limitations; establishing the essential functions of the employee’s position; identifying potential accommodations; evaluating whether the accommodations identified will enable the employee to perform essential functions; assessing the operational impact of the accommodations identified; and determining whether the accommodations identified would pose undue hardship on the employer. This requires input from employees, healthcare providers, managers and directors, human resources personnel, and, at times, legal counsel.
Given the various components, the interactive process can be complicated for employers to navigate and missteps along the way can prove to be costly. However, employers can limit exposure by avoiding these common mistakes:
- Failing to engage in the process
Saying “no” to a request for accommodation does not satisfy the obligation to engage. The interactive process is a two-way dialogue. Both employers and employees must participate in good faith. If an accommodation is denied based on a determination of undue hardship, an employer must make good faith efforts to identify alternative accommodations that will not pose undue hardship.
- Abandoning the process without resolution
Depending on the nature of the accommodation at issue, the interactive process can be prolonged and lead to frustration. Although it may be tempting to stop communicating, the process must be carried out until a determination can be made as to the grant or denial of an accommodation. Throughout the process, timely communication is required.
- Failing to obtain medical information necessary to evaluate the request for accommodation
All too often, employers delve into the interactive process, and even go on to grant accommodations, without having requested relevant medical information. Employers are entitled to confirm the existence of a disability requiring accommodation; the associated functional limitations; and the nature, scope, duration, and medical necessity of the accommodation being requested. These facts inform the process and assist with identifying potential accommodations and, thus, should be requested at the outset. Notably, however, medical inquiries must be limited, reasonable, and tailored to the condition for which an accommodation is being requested; be directed to the employee in the absence of a HIPAA authorization permitting direct communication with the employee’s healthcare provider; and be accompanied by a Genetic Information Nondiscrimination Act (GINA) disclaimer.
- Failing to understand that provision of leave may be required beyond Family and Medical Leave Act (FMLA) leave
Employers must consider provision of paid and/or unpaid job protected leave as reasonable accommodation. This includes the provision of additional leave after an employee’s exhaustion of 12 weeks of FMLA leave. Accordingly, when an employee takes FMLA leave for a serious health condition, the employer should anticipate having to address a request for extended leave by way of the interactive process.
- Following a bright-line cut-off for leaves of absence
It is clear that provision of indefinite leave—when an employee is unable to say if or when he or she will return to work—is not required. However, there is no bright-line rule for the length of leave or the number of leave extensions that should be provided as a reasonable accommodation. The relevant inquiry is always whether provision of leave or extended leave will pose an undue hardship.
- Requiring employees to return to work ‘full duty’ or with ‘no restrictions’
The Equal Employment Opportunity Commission has made it abundantly clear that it is unlawful to require employees to return to work completely healed. An employer must consider accommodating an employee’s restrictions, so long as the employee can safely perform the essential functions of the position and the accommodation poses no undue hardship.
- Accepting a managerial determination of undue hardship without probing further
A manager saying an accommodation constitutes an undue hardship does not make it one, nor does the fact that coworkers will be disgruntled or inconvenienced by the accommodation. Employers must delve deeper. Undue hardship means “significant difficulty or expense” will result from provision of the accommodation.6 Factors to be considered include the nature and net cost of the accommodation; the resources, size, and operations of the facility and covered entity; and the operational impact of the accommodation (e.g., impact on coworkers’ ability to work, on the health and safety of others, on the continuity of the employer’s services).7 Before a request for accommodation is denied, an employer must be able to concretely demonstrate why it constitutes an undue hardship.
- Failing to document the outcome
Regardless of the outcome, it must be documented. If an accommodation is granted, documenting the scope and parameters of the accommodation will set clear expectations for the parties. To the extent an accommodation is denied by the employer or declined by the employee, documenting the efforts undertaken and the basis for the denial or declination will assist in defending against claims.
Neha Patel is a partner with Apruzzese, McDermott, Mastro & Murphy, P.C. in Warren.
- 42 U.S.C. § 12102, et seq. and 29 C.F.R. § 1630.1, et seq.
- N.J.S.A. 10:5-1, et seq. and N.J.A.C. 13:13-1, et seq.
- 42 U.S.C.A. 12112; 29 C.F.R. 1630.2; N.J.A.C. 13:13-2.5.
- 42 U.S.C.A. § 12111; N.J.A.C. 13:13–2.5.