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Employers Must At Least TRY To Accommodate Disabled Employees

By James Peters

In the United States, employers must actively engage in an “interactive process” with disabled employees to try and find a “reasonable accommodation” for their disability, even if no such accommodation actually exists.

What is an “Interactive Process”?

What this means is if an employer knows one of their employees is disabled and they suspect that employee might need some sort of accommodation (e.g. ergonomic keyboard, wheelchair ramp, a chair to sit in while working, etc.), they must approach that employee and work with them to determine if such a reasonable accommodation exists.

The employee does not have to ask for an accommodation to be entitled to one, because many employees do not know their rights and that should not effect their entitlements under the law.

Additionally, if an employee requests an accommodation for their disability, the employer must work with the employee to either find a reasonable accommodation or determine that no such accommodation exists.

The employer cannot simply ignore the employee or deny the request because the accommodation requested is not feasible. For example, if an employee requests to telecommute and work from home as an accommodation, but the employer legitimately needs them in the office, then even though the requested accommodation might not be “reasonable,” the employer is now under a duty to see if there is some other accommodation both sides can agree upon. If the employer simply says “no” and leaves it at that, then a violation has occurred.

California Takes this One Step Further

In California, if the employer refuses to engage in this “interactive process,” the employee can sue based on this violation alone. This was the case in Wysinger v. Automobile Club of Southern California (Cal.App.Dist. 2 11/9/2007) No. B191028.

In Wysinger, the jury determined that (1) the employer failed to engage in the required interactive process, but also that (2) the employer did not fail to accommodate the employee’s disability because no such accommodation was available. The employer appealed the decision, arguing that these two verdicts were inconsistent, because they were held liable for not working with the employee to agree on an accommodation that did not even exist.

However, the court upheld the award to the employee of over $2 Million, because the employer’s failure to even respond to the employee’s accommodation requests is a completely separate question and independent from whether an accommodation actually existed or was denied.

Employees must realize that they have a right to a reasonable accommodation for their disabilities at work and employers have to realize that they have to at least try to explore possible reasonable accommodations with an employee who is disabled.

Cases | Disability | Discrimination | Reasonable Accommodation

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Full post as published by California Employee Rights Blog on January 15, 2008 (boomark / email).