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  • Writer's pictureKevin Crayon II

Reasonable Accommodations in the Workplace for Disabled Employees


Avoiding Common Mistakes in Workplace Accommodation Requests


Employees with medical conditions or disabilities have rights under the Americans with Disabilities Act ("ADA") and the Rehabilitation Act (for federal employees), including the right to request reasonable accommodations. The Equal Employment Opportunity Commission ("EEOC") has well-consolidated extensive guidance and current resources that you should review, covering a range of topics, including artificial intelligence ("AI") and the ADA, and enforcement guidance.


As an attorney specializing in federal sector employment litigation, however, I've actually seen numerous defenses that employers attempt to use against employees seeking these accommodations. This article shares practical tips based on my experience to help you avoid common mistakes and strengthen your case or potential claim if your employer fails to accommodate you reasonably.


Below, you'll find a video discussing the top mistakes employees make in reasonable accommodation cases. This visual guide sets the stage for the detailed advice provided in this article.



Following these guidelines can make your reasonable accommodation process more effective and robust. Let's debunk some standard literature and focus on practical steps, such as proving you made a request, documenting interactions, and suggesting feasible accommodations.


Make a Clear, Written Request


A common defense is that the employee never made a request or what could be construed as a request. Although the law does not require it, I recommend leaving no doubt that you requested an accommodation. An email to your supervisor, labor relations, Human Resources, or the reasonable accommodation point of contact usually suffices.


Your request for an accommodation should be clear. Although the law doesn't require "magic words," you should make it clear you are requesting a reasonable accommodation for your disability so that you can perform the essential functions of your position.


This is my video for the five major steps in requesting an accommodation.



Follow Up in Writing (Courteously)


A common defense is to point the finger back at the employee: "The employee didn't respond," "the employee didn't provide medical records," or "the employee didn't interact." Avoid these defenses by ensuring you follow up. Any verbal follow-up should be memorialized in writing.


Be Flexible with Your Preferred Accommodation


A common mistake is insisting on only one particular accommodation, like full-time telework, without suggesting alternatives. Both the employer and employee can become fixated on that one accommodation, weakening the employee's case.


An employer does not have to give you the accommodation of your choice. If you insist on only one type of accommodation, you could restrict yourself out of a job if that accommodation is found to be unreasonable or unavailable.


The bottom line is that you have to be able to perform your essential functions. Your accommodation ideas should make it clear that your requested accommodation is a suggestion and indicate your willingness to engage in the interactive process to discuss all options.


Avoid Overly Restrictive Work Limitations


If your restrictions are overly restrictive, you could restrict yourself out of a job. A common mistake is having a doctor write out many restrictions and then leaving it up to the employer to figure out how to accommodate them.


The more restrictive your limitations are, the more prepared you should be to identify feasible accommodations that will enable you to do your job. Review your position description and essential functions. Some jobs, like Postal Mail Carriers or Postal Clerks, require lifting, face-to-face interactions, and driving.


Don't Confuse Workers' Compensation with Reasonable Accommodations


With an on-the-job injury, you may be entitled to Workers' Compensation benefits, which may include being offered a job that modifies or eliminates your essential functions. This process is different from the law governing reasonable accommodations. With reasonable accommodations, an employer only has to modify marginal job functions or modify your essential functions without eliminating them.

Sometimes a modified job offer can constitute a reasonable accommodation if it can be shown that the employee was performing successfully in the modified role and there is no undue burden to the employer.

[insert link]


If you have a Workers' Compensation claim or on-the-job injury, review the EEOC's guidance on the overlap between reasonable accommodations and the ADA.


Avoid Inconsistent Arguments


Employees sometimes weaken their reasonable accommodation case when they pursue many different paths with contrary legal requirements and arguments. This mistake occurs when they have multiple disability claims in different forums or processes.


Sometimes an employee may make arguments in these other processes that prove they cannot be accommodated. Reasonable accommodation law differs from social security disability, federal disability retirement, Workers' Compensation, Family Medical Leave Act ("FMLA"), and veterans' disability rights.


For example, when you apply for federal disability retirement, you are telling the government that you cannot be accommodated in your job. When you apply for social security disability, you are telling the government that you cannot work. This is contrary to an argument that you could work with or without reasonable accommodations. When faced with multiple forums and processes, consult an attorney to ensure you are choosing the right path or making consistent arguments.


Ensure Your Accommodation is Effective


Your health is the first priority. If you believe your accommodation is ineffective, follow up and explain why it is ineffective. Equally important, suggest effective accommodations and engage in the interactive process. Merely telling your employer that you decline the accommodation is insufficient and will only result in a defense against you. Continue the interactive process to find an effective accommodation while prioritizing your health.


Get Your Doctor Involved if Needed


Your medical provider can play an important role in your reasonable accommodaiton request. A common defense is that the employee did not provide adequate or clear medical records when requested. If your disability is not obvious, employers have the right to request medical information. Be sure to avoid restricting yourself out of a job. If your medical provider says you cannot perform essential functions without an accommodation, communicate what accommodations would enable you to perform your essential functions.


Doctors are not experts at your job. Be careful when discussing this with your doctor. Consult and educate your doctor on your essential functions and discuss possible accommodations. Avoid having your doctor merely list restrictions without suggesting reasonable accommodations.


Document the Interactive Process


Both the employer and employee have a duty to engage in the interactive process to discuss your needs and how to meet them so you can perform your job. Both often fail in this process, with the employer usually blaming the employee for being non-responsive or alleging things were said or not said.


Document all communications regarding your reasonable accommodation process. Anything verbal, including interactive meetings, should be memorialized in writing. Employers often embellish (or lie) about their interactions. They may claim they were interactive and you were not. Avoid this by documenting everything.


Research and Suggest Effective Alternatives


If the employer fails to interact or denies your accommodation, be ready to communicate reasonable accommodations that could enable you to perform the job. This takes research on your part, including reviewing the EEOC's resources for locating reasonable accommmodations. Some employers have a Job Accommodation Network or program that assists with ideas and procurement of accommodations.


If the employer fails to communicate or denies your accommodation, this alone will not hold them liable unless you can show that had they communicated, you could have been accommodated. While the burden is on both parties to communicate, you should be able to identify alternative effective accommodations. This could hold an employer liable because you'll be able to prove that had they properly engaged with you, you could have been accommodated. Witnesses knowledgeable about the job's essential functions and the types of accommodations are often necessary to strengthen the case.


Ask for an Interim Accommodation


Sometimes the accommodation process takes time to find a permanent solution. Meanwhile, you can request accommodations in the interim. This is important for your safety and health; you don't want to exacerbate your disabling condition.


Additionally, if the agency fails to provide you with a reasonable interim accommodation, they may be liable for the delay between your request and when you received the accommodation.


If you successfully perform well in your interim accommodation, this could help prove that your request was reasonable, especially if a new supervisor comes along and decides to deny an accommodation you've been successfully performing.


Document Any Exacerbation Caused by Delays


If the employer unreasonably delays your accommodation, this could cause harm to you. Document any mental or physical pain and suffering you endured from unreasonable delay. Should you prevail in your case, you may obtain substantially more money for your damages.


Document Any Retaliation


Requesting a reasonable accommodation is a protected activity. You should be free from reprisal. If you suspect you are being retaliated against because you asked for an accommodation, immediately protest the retaliation and identify the basis/motive for retaliatory acts being your reasonable accommodation activity. Your proper protest becomes even more protected activity.


If the retaliatory adverse actions taken against you because of your disability are sufficiently harmful or deterring, make EEO contact to raise a claim of retaliation.



Study What Qualifies as a Disability Under the ADA


Perhaps you do not consider yourself "disabled" in the common ordinary understanding of this term. This term has many meanings in different contexts. Under the current ADA, the standard is now lower. You do not have to be crippled, blind, or deaf to be disabled. While these disabilities are obvious, many long-term medical conditions qualify as disabilities if they significantly affect major life activities (and the quality of your personal life) or bodily functions.


Study whether your condition qualifies as a disability under the ADA. Migraines, for example, may qualify. If your disability is not obvious, educate your employer on your disability and how you believe an accommodation would enable you to perform your job.


Notify the Right Personnel


If your disability is not obvious, you must notify your employer and make it clear you are seeking an accommodation. Notifying a coworker does not suffice. Proper personnel include your supervisor, Human Resources, or a designated accommodation program point of contact.


If your supervisor refers you to such personnel, diligently follow up. It could take coordination between your supervisor, who is more familiar with your work requirements, a disability specialist, who is more familiar with the types of accommodations that are reasonable, and Human Resources to implement the accommodations.


What's Not Reasonable?


The accommodation must enable you to perform your essential functions and not be an undue burden on the employer. There are certain factors that are considered, such as the size of the employer. While this is circumstance-specific, there are accommodations that are generally not viewed as reasonable by the courts:


  • A change in supervisors

  • Having other coworkers perform your essential functions for you

  • Creating a job for you

  • Eliminating essential functions

  • Full-time telework for a mostly in-person job

  • Accommodations that create an undue hardship

Be sure to request an accommodation that is reasonable and be open to alternative suggestions.


What's Usually Reasonable?


Accommodations that are reasonable vary according to the facts of the case. However, there are accommodations that the courts have found to be reasonable under circumstances involving large employers, such as federal agencies. These requests are usually reasonable:


After the Covid-19 pandemic in 2020, telework became more prevalent, and the Commission began issuing decisions against employers for arbitrarily denying telework. Review the EEOC’s updated guidance regarding reasonable accommodations, regarding medical inquiries, leave, and telework.


Additionally, you should review your employer's reasonable accommodation policy. The Department of Veterans Affairs and the U.S. Postal Service, for example, have detailed policies and guides for reasonable accommodations. These guides are not controlling; the law is what controls. Nonetheless, the guides are usually written to conform with the law, and by following your employer's guidance, you strengthen any potential claim you may have regarding the failure to accommodate.


Final Thoughts


As an experienced attorney specializing in workplace accommodations, I hope to educate the general public so employees can have a better chance of receiving needed accommodations and employers can benefit from a capable workforce.


The issue of reasonable accommodation is always circumstance-specific. This article discussed examples based on my experience. Hopefully, this guidance and the resources linked herein will assist you in obtaining an effective accommodation while also strengthening a potential claim.


If you do all the right things and you are still denied an accommodation or unreasonably delayed, make EEO contact when you suspect a violation has occurred. Contact an experienced attorney either as a preventive measure or to consult about your potential claim.


Meanwhile, here is a short wrap-up video regarding some mistakes to avoid.



 






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