Under Federal, New York State and New York City anti-discrimination laws, an employee with a disability is entitled to a reasonable accommodation to allow that employee to perform the essential functions of his or her job. Employers are required to make a reasonable accommodation for the known disability of an employee so long as doing so wouldn't impose an undue burden on the employer's business.
Once the employer is made aware of an employee's disability, the law is clear in that employers have a mandatory obligation to engage in an individual, fact-specific "interactive process" of negotiation to determine a proper accommodation for the employee's specific medical condition. This process should clarify the individual needs of the employee and employer, identify the precise limitations resulting from the employee's disability, and identify possible accommodations that could overcome those limitations.
Just last year, on July 28, 2009, in Phillips v. City of New York, the court reiterated a New York employer's obligation to engage in this interactive process when it held that an employer violated New York State and New York City anti-discrimination laws due to the employer's failure to engage in any interactive process. The court made clear that, under both laws, the first step in providing a reasonable accommodation is engaging in a good-faith interactive process that assesses the needs of the disabled employee and the reasonableness of the accommodation requested. The court further stated that this interactive process must continue until an accommodation reasonable to the employee and the employer is reached (if one is possible).
In light of this obligation, when an employee requests an accommodation for a claimed disability, we recommend that the employer immediately take the following steps to ensure compliance with the law:
1. Look at the particular job involved and establish its purpose and essential functions;
2. Consult with the employee to find out how his or her specific disability limits his or her ability to perform the essential job functions;
3. If the disability is not obvious, ask the employee for additional information and documentation from an appropriate health care provider about the disability and functional limitations;
4. Identify potential accommodations and examine the effectiveness each accommodation would have in enabling the individual to perform the essential job functions; and
5. Consider the employee's preferred accommodation and select an accommodation that is most appropriate for both the employee and the employer.
Lastly, to further limit liability, employers should always document its efforts exploring reasonable accommodations and even develop written procedures for an interactive process that are published in an employee handbook.
Following these suggestions will minimize the likelihood that a court will find that you failed to engage in the interactive process. However, due to the complexities involved in managing employee disability issues, it is smart to discuss your specific situation with a disability discrimination attorney.
