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HOW "REASONABLE" DO YOU HAVE TO BE
WHEN PROVIDING A REASONABLE ACCOMMODATION?
Most employers know that under the Americans With Disabilities Act, if an employee with a "disability" (a defined term that has no relationship to its common meaning) needs a "reasonable accommodation" (another defined term that defies understanding) to perform the "essential functions" (ditto...) of his or her job, the employer must provide that reasonable accommodation, or risk substantial damages. From an employer's perspective, the dilemma is always how "reasonable" do you have to be in providing a reasonable accommodation? It is an easy concept to state in the abstract, but what about real life? If an employee needs certain electronic enhancements to use a computer, and if the enhancements cost $1,000, do you have to provide them? $5,000? $25,000? If an employee needs a half hour break in the afternoon to take medication, do you have to provide it? Suppose you are understaffed? Suppose the employee wants an hour break in the morning and an hour break in the afternoon?
In attempting to untangle this knot, most courts have ruled that the employer and the employee must engage in an interactive dialogue - the employee can offer a suggested accommodation, the employer can come back with its own proposal, and the dialogue is to continue until a reasonable accommodation is agreed upon. Liability only results if the employer does not engage in a reasonable give and take.
In a recent case, however, the Third Circuit Court of Appeals may have redefined this process and, basically, found that once an employee proffers a suggested reasonable accommodation to the employer, the employer must accept it without a counterproposal, unless the employer can prove that the suggestion would cause it an "undue hardship" (whatever that means). Read literally, the decision means that an employer who engages an employee in a reasonable accommodation dialogue does so at its own substantial risk.
Here is what happened. The plaintiff, Skerski, serviced cable television wires, and had to climb poles and ladders as a regular part of his job. After about 10 years, Skerski became fearful of heights, and was diagnosed as having a panic and anxiety disorder. His psychologist recommended that he keep his feet on the ground. Skerski's employer at first assigned him to underground cables, but after several years requirements changed and his employer told him that he could not keep his job if he could not climb. So, consistent with the new breed of educated employee, Skerski told his boss that he could resume climbing "with an accommodation" - the use of a bucket truck. The employer felt that was impractical, and sought a dialogue. Skerski dug in his heels and sued under the ADA, claiming that his employer failed to provide a "reasonable accommodation" that he needed to perform the essential functions of his job.
One might have expected the court to rule that Skerski should have engaged in an interactive dialogue with his employer and, having taken a "my way or nothing" approach, he was out of luck. Instead, the court implicitly endorsed Skerski's approach, and the language it used in disposing of the case is scary. The court seems to have ruled (it's a bit murky) that unless Skerski's employer could prove that providing a bucket truck was unreasonable, it had to honor Skerski's requested accommodation without further discussion. Here's how the court stated its ruling (with the key words emphasized): "It is only when the accommodation suggested [by the employee] would constitute an undue hardship that the employer can justify failure to accommodate in that manner." That sentence has put the employment law community into a bit of a tizzy - it has the potential to inject an incredible amount of risk into the employment relationship.
The upshot of all of this is difficult to predict. If you truly think an employee's requested accommodation is unreasonable, do you bet the ranch merely by proposing an alternative? Other courts may ultimately disagree, but for now, here is the message: employers must be extremely careful, and very well advised by counsel, when dealing with reasonable accommodation issues under the ADA. The mines have been planted in the minefield.
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