E6: What is Reasonable? A Discussion About Reasonable Accommodations

In this episode host, Thom Jennings and attorney Kathleen Jennings discuss reasonable accommodations and how they are interpreted by law. Kathleen discusses the "interactive process" and how to start a dialogue regarding reasonable accommodations and if they create an "undue hardship."

Podcast Episode Transcript

Narrator (00:03):
You are listening to Cover Your Assets, a podcast that discusses the timely and significant legal issues faced by employers. Kathleen Jennings is an attorney who has over 30 years of experience in advising employers as to their legal responsibilities and has written extensively about employment law in our popular cover, your Assets blog. If your business has employees you cannot afford not to have your assets covered.

Thom Jennings (00:32):
Hello Everyone, welcome to the Cover Your Assets podcast. It is a podcast dedicated to labor and employment law, and this week we're gonna introduce a new topic. That topic is reasonable accommodations, and here to discuss reasonable accommodations is none other than our resident expert. And my sister Kathleen Jennings. Kathleen, how are you today?

Kathleen Jennings (00:58):
Doing great, Thom. Great to be here with you.

Thom Jennings (01:02):
All right. Now, I think when people think of the term reasonable accommodations, this usually has something to do with a disability and that disability could in some way, shape or form maybe impact the ability of an employee to perform their necessary job functions without a reasonable accommodation. So, if I am correct from a legal standpoint, a reasonable accommodation would be anything that an employer could offer within reason and will discuss what that means. Cuz I, I think that's kind of an ambiguous term and maybe a bit subjective as well to help an employee be able to perform their job. So what does the, the law say about this? And I assume that there is differences in in state and federal laws, but I assume probably the federal law supersedes everything when it comes to reasonable accommodation.

Kathleen Jennings (01:57):
Well, most of the law that we're going to, to look at will be the federal law, which is the Americans with Disabilities Act. And the Americans with Disabilities Act tells us that if someone has what is legally considered a disability, and that is a legal term. So that's the first determination that would have to be made. If somebody has some sort of medical or psychological issue that qualifies as a legal disability, then the employer has a duty to provide reasonable accommodations that would assist that person in performing the essential functions of the job. And like you said, what is a reasonable accommodation? There's no easy answer to that. It's something that must be determined on a case by case basis depending upon the type of job, depending upon the employee. But it is, it is, is something that has to be looked at by the employer.

Kathleen Jennings (03:02):
What the E E O C tells us is that the employer and the employee or applicant have to go through what they call is an interactive process, which is a conversation between the employer and the employee about what types of accommodations would help the employee perform the job and the impact of that accommodation on the employer. So it's, it's a dialogue, it's a give and take, and employer doesn't necessarily have to provide the reasonable or the accommodation that the employee wants. It may not be reasonable or it may cause an undue hardship on the employer. So again, this is something that has to be looked at on a case by case basis. There's no cookie cutter answer to what is a reasonable accommodation.

Thom Jennings (03:58):
So I, I mean, at what point does this, does this become an issue? So for example, if I'm interviewing for a job, I don't have to let my employer know that I have a particular disability correct. And I don't believe that they're able to ask me that. Are they able to at least ask, well, can you reasonably perform this job? Or can you perform this job with reasonable accommodations?

Kathleen Jennings (04:24):
Normally what you'll see on an application is a question that says, are you able to perform this job with or without reasonable accommodation? An employer should not ask an applicant if they have a disability. However the question of a disability and reasonable accommodation can come up after a conditional offer of employment is made. At that point, once the offer is made, the applicant or now employee really can disclose, I have this disability and I need an accommodation. And then at that point they can determine if it's possible for the employer to accommodate that disability, which is why we call it a conditional offer of employment. If it, if the employer finds out that it's not possible for this employee to perform the essential functions of the job with or without reasonable accommodation, then the employer can rescind that conditional offer. But it's a process and it's a process that should be discussed with counsel.

Thom Jennings (05:31):
So you're saying that I, I mean in terms of counsel, I guess the important thing is going to be in terms of, you know, crafting a job application and making sure that you have the right language in that. But I assume that you would want to train employees on how to address situations in terms of reasonable accommodation because I think the, the other thing is, is that when it comes to disabilities, there are certainly some that the employee, potential employee wouldn't have to let their potential employer know about. But there may be some that are very obvious. For instance, if an applicant came in in a wheelchair, I mean, unless they're just liking to ride in a wheelchair, clearly they have a disability. So at that point, I would assume that the person doing the interviewing has to be very cautious in terms of any kind of questions related to whether that person would need a reasonable accommodation or not.

Kathleen Jennings (06:28):
I agree, Thom, although I would say that riding in a wheelchair, maybe somebody has a broken leg, so it's a temporary condition, so we can't make assumptions about what is or is not a disability, but there are some disabilities that are quite obvious. And so the real challenge in an interview when someone is interviewing an applicant that has an open and obvious disability is to focus, not on the disability, but focus on what that applicant is able to do and what are the essential functions of the job. Not what they can't do

Thom Jennings (07:06):
Is, I mean, is are temporary disabilities covered under the A D A

Kathleen Jennings (07:12):
A disability normally is not a temporary condition. Those types of medical issues are probably more likely to be covered by the Family Medical and leave Act if somebody needs leave. But normally a disability is something that is, is more than temporary.

Thom Jennings (07:32):
Alright. And again this, this could be physical disability or mental disability. Once there is a conditional offer of employment, what is the responsibility of the potential employee and then what is in turn the responsibility of the potential employer in terms of getting any kind of documentation to prove that there is indeed a disability?

Kathleen Jennings (08:00):
Well, if the, once the conditional offer is made, if the employee or, yeah, I guess he would be an employee, he or she, the employee then can offer to the employer the fact that they have this condition and that they would require some, a reasonable accommodation in order to perform the essential functions of the job. And then at that point they can engage in the interactive process to determine what types of accommodations could be reasonable in this situation.

Thom Jennings (08:33):
So what's but in terms of, I mean, I say this because I mean just a recent situation that I had with a coworker, for example self-disclosed disability, and there was a period of time where they, you know, somebody came, well, I I, I guess without getting too deep into it, this, this gentleman, he falls asleep while he is working, has a condition that it's like a form of narcolepsy. My boss came to me and asked me if I thought that he was on drugs, <laugh>. And and, and then I had the conversation with my coworker and he said, oh, they're requiring me to bring in some documentation, some medical documentation showing that I have this condition where I will on occasion, you know, start falling asleep. So I may need to get up, leave the room, walk around, things like that. So I'm wondering again, because you have these two competing interests, the hipaa, which would be the, obviously the, some the privacy with regard to a person's medical condition. But also, again, you could get into a situation where an employee could state that they have a condition that requires a reasonable accommodation and not provide the documentation. I mean, does that, is, does the, does the employer have the right to get supporting documentation to prove that the disability exists?

Kathleen Jennings (09:52):
Yes, they absolutely do. And normally in order to get that documentation, you would want to have the employee sign some kind of release of medical information. And that's for the purpose of the, the medical care provider, not necessarily for the employer, but you want the medical care provider to be able to provide documentation to the employer. And sometimes the physician may even be a part of the interactive process. Maybe the physician will have some ideas as to what accommodations would be the best fit for that particular employee.

Thom Jennings (10:33):
And, and again, you used the term, I think that it's an important one as well, creating an undue hardship because I know there's been situations that I've heard of where, you know, maybe the employee says, well, this is the accommodation that I need. This is the one I've had at past employers. And then the current employer will say, well, that's not reasonable. It's gonna be too difficult for you to perform your job. It's gonna cost us money, it's gonna de decrease your efficiency. It seems like though those cases can get pretty muddy and litigious. Is that, has that been your experience at all? Absolutely.

Kathleen Jennings (11:05):
Yeah. Absolutely. And, and you know, that's what keeps us lawyers working is trying to figure out what's an undue hardship, what's a reasonable accommodation. We have things that are sort of at the end of the spectrum that we know are unreasonable such as, I think we touched on this in the blog, the employee that doesn't wanna come to work or they have a note from their doctor that says they basically can't come to work for a year now that's gonna create an undue hardship because basically nobody's doing that job. Or if the employer has to hire a second employee to do the job that the first employee should be performing, that can be an undue hardship on the employer as well.

Thom Jennings (11:53):
So what, but again, in terms of, of the employer, what would be the best practice in terms of avoiding litigation when it comes to demonstrating that there is indeed an undue hardship on the employer?

Kathleen Jennings (12:08):
Well, that's where you definitely want to have counsel involved. You definitely want to have documentation of the interactive process with the employee and the various types of accommodations that have been discussed and the impact of those accommodations on the employer as well as the employee. And if there is an accommodation that would have some sort of undue cost or would make it impossible for that job to be performed, make sure there's documentation of that as well. It's, it's a, it's like any other employment situation. You wanna document every step of the process so that you have evidence in case this matter does go to litigation.

Thom Jennings (12:56):
So I, I'm curious, and I don't know if this is anything that you've run up against, but I'm wondering, especially now in, in this, this kind of post pandemic world or semi post pandemic, however you want to put it at the time that we're recording this, I mean at the height of the pandemic, a lot of employers, they, they let employees work at home. And in fact my son your, your nephew has said that there's, there's potential employees that he works with as a, an executive recruiter that are all saying, oh, you know, we wanna work at home, we don't wanna go to the office. And I've even heard of cases where they've been able to get medical excuses saying, oh, you know, there would be too much anxiety to work in a work environment or whatever. And I mean, could the employer, if they want to get to the point where they say, Hey look, we need everybody back in the office. Could they start running into these situations where maybe a physician would say, yes for mental health reasons, this employee will need to work at home for a certain period of time. And if indeed the operation is functioned with people working from home, wouldn't that make it difficult for the employer to make the case that it's not reasonable to allow the employee work to work at home?

Kathleen Jennings (14:06):
Absolutely. You hit the nail on the head there, Thom. If an employee who had been working from home successfully prevents or pres presents documentation from a physician that justifies further working from home, it's going to be very hard for the employer to say, this is an undue hardship. The job won't get done if the job's been getting done from home for the last two years. So absolutely those situations are coming up because there are a lot of employers that wanna get people back in the office and people who have been working from home like it, they don't wanna necessarily get back into a, a commute or having to get dressed up every day to go to work. They wanna work from home, maybe even just one or two days a week.

Thom Jennings (14:55):
And, and again, that would technically fall. I mean, if it was, let's say a mental health issue or I, I mean, I suppose even on some level, somebody that we went back to the case as somebody in a wheelchair who couldn't drive and, and was an applicant and couldn't have transportation to the office, but there were other people that had been working at home at some point during the operation of the organization, I would assume that they'd be able to make a valid case to say that you should be able to hire me so that I can work from home. I mean, that could potentially be an issue of, in terms of like litigation, maybe a person suing saying, well, they wouldn't hire me because I don't have transportation or can't drive, but yet they've had other people working at home.

Kathleen Jennings (15:38):
Well, it would depend on the job, Thom, because there are some jobs that are better performed in person. Obviously if somebody is the receptionist for a company, they can't really do that very successfully from home because they need to greet people that are actually coming into the office. There may be other types of jobs that are more successfully performed on a remote basis. And so that would be part of the equation to determine whether working remotely would be a reasonable accommodation for somebody who requests it.

Thom Jennings (16:16):
Alright. And I, I don't have, I mean, typically we go and I have some kind of wacky story, I guess, for lack of a better term, when it comes to the scenarios, at least if you've listened to some of our previous episodes, that's been the case. But let's go back to the first one that I presented to you, cuz I think that there's a lot of layers to it. So again, gentleman I work with medical condition causes him to, to get really drowsy sometimes actually fall asleep throughout the, the course of the workday. At this point, the employer to the best of my knowledge has, I, I mean I know that they're aware of it cuz they've spoken to me about it, but at this point the employer, I guess perceives this as a reasonable accommodation letting him, you know, take walks or all these other things and and whatnot.

Thom Jennings (17:01):
But if an employer has offered a reasonable accommodation, but then that re that actual condition gets to the point where it turns out that it's not workable, is that going to be an issue? I mean, would they have been better off, let's say at the beginning saying, look, if you're gonna fall asleep at work, your duty is to supervise kids or whatever, we can't work around this. Are were they, would they have been better off doing that? Or were they better off saying, well, here's the reasonable accommodations, at least we gave it an effort to try to give you reasonable accommodation to perform your job, but it's determined that you can't,

Kathleen Jennings (17:38):
That may happen. And again, it's gonna be taken on a case by case basis. I will say, what I like the least about your scenario is the fact that the supervisor was discussing another employee's medical condition or possible drug use with you, a coworker. We have to remember that medical information should be kept confidential. It shouldn't be discussed with other employees in the workplace other than to possibly say, if someone has a question, you know, why does Joe get to get up and walk around every hour? You know, because he needs to, you don't need to go into the particulars of a person's medical condition. If they wanna share the information with their coworkers, they can, but the employer definitely should not, the employer should keep that information confidential. And then getting back to your point, if you can always try out accommodations, it's not, it's a very fluid process.

Kathleen Jennings (18:42):
Maybe the accommodation works for a while and then it doesn't, maybe there is no accommodation. You know, somebody who falls asleep without warning is probably not going to be suited for a job that may involve driving because there's nothing you can do to prevent an accident if there's no warning that they're going to fall asleep. So sometimes maybe there is no accommodation for a particular job, can they be put in a different job where that's not going to present a safety hazard? It's it's the interactive process. It's an ongoing process and there's no one easy way to just say, this is the accommodation and we're done.

Thom Jennings (19:29):
Yeah. And, and to be fair, the, my supervisor did not discuss the disability with me ever. They simply, when, when the employees started because they were falling asleep and that they would look, you know, their eyes were bloodshot and everything like that. He was asking me if that, I thought based on observation, maybe he was on some kind of drug or something. And, and again, i I, I suppose on some level, this is a gray area, but I've worked with other employees that are coworkers that have been drunk on the job. I mean, they'll be drinking during the course of the workday. Now, I'm, I'm not gonna report them, but if my supervisor came to me and said, do you, in your opinion, do you think this person is consuming alcohol or, you know, under illicit drugs, I guess on some level, I mean, is that an invasion of privacy? I know it's a little bit off topic, but I, I, I mean, do you, I mean, do you think, do you think that what he asked me was reasonable in terms of this? Because that's what brought up the conversation with my coworker. I said, Hey, you know, what's going on with this stuff? He said, oh, I have a medical condition and I've gotta provide some documentation.

Kathleen Jennings (20:35):
I think that if an employer wants to ask you about what you observe about a coworker, particularly if they are concerned that perhaps the coworker is doing something unlawful or in violation of the work rules, like do they smell of alcohol or do you see a bottle of alcohol in their drawer, or do they smell like weed? You know, it's okay to ask that, you know, a lot of, a lot of employees don't wanna rat out other employees because nobody wants to be a snitch. I mean, some people wanna be snitches, but not everybody. So that's, that's appropriate. That's the kind of appropriate question that an employer can ask. I guess that just gave me the opportunity to get into my point about confidentiality of medical information.

Thom Jennings (21:29):
Well, and it, and in some ways it's, it's been a difficult situation for me because, you know, we have, we have students that are seeing this individual and then, then they're asking questions about it. And I can't, I can't tell the students because even as a coworker, even though he's told me what's going on, it's not my place to say to the kids, well, this is why this person is dealing with this particular issue. So it does, again, it creates a very, a very gray area. And I, and I think, you know, going back to the, to the alcohol situation too I wonder because I, I think there were times that I've worked places where people have suspected, you know, you have a, have a coworker who is an alcoholic and, and I mean, technically alcoholism could be considered a disease, a medical condition that would need treatment, but I don't know that you would be able to have any kind of reasonable accommodation in terms of a person who's struggling with alcohol addiction. But it on some level, it has to be difficult to terminate them if they, if it is a medical condition. Or is that just, I mean, does that all just fall under the policy? No consuming of alcohol on the premises versus I'm an alcoholic, which is a, an identified health affliction.

Kathleen Jennings (22:43):
Being an alcoholic or being an AR can be considered a disability. However, if somebody is actively drinking on the job or actively using drugs on the job, they can be disciplined for that. So if somebody says to the employer, I'm an alcoholic, I need to go to treatment, I need 30 days off. So I go to a treatment program, then the issue there would be, is that a reasonable accommodation for that employee to let them have 30 days? And again, other laws come in like family and medical leave act, maybe they can get F M L A leave for that as well, but that's when the issue would turn into an a ADA issue. But again, not if they're actively using alcohol at work or actively using illegal drugs at work. Those can always be disciplined.

Thom Jennings (23:40):
Yeah. And, and I think, I think the point too is you mentioned there's so many different laws that govern these situations, and there there can be crossover. Some of them may be, you know, again, temporary disability may not be, it's, it doesn't appear as covered under ada, but there are things that may fall under both the F M L A, like you said, with the alcoholism, but it also could fall under the ADA based on the fact that the alcoholism is considered something that needs treatment or, you know, drug addiction or those types of things. So interesting stuff for sure. You know, obviously the, like you said, I think the, the key takeaways, at least from my end, and you can reiterate them as well, is that these particular situations in terms of, of reasonable you know, reasonable as a word that that can be difficult. What is reasonable, what's an undue hardship, you know, and, and it's, and these are the types of things that as an employer, it sounds like it would be incredibly dangerous for you to try to, to maneuver these situations on your own without at least some level of legal counsel to make sure that, that your ducks are in a row. Because I mean, these, these situations feel like they can be really volatile and become incredibly litigious if they're not handled properly

Kathleen Jennings (24:53):
And complicated. And, and you're dealing with people's livelihoods, you're dealing with people's lives. So it is important to have counsel involved in this type of process because there are a lot of laws. We may even be looking at workers' compensation issues. There may be state laws involved. Some states have state laws that prohibit discrimination on the basis of disability. So there's a lot of moving parts.

Thom Jennings (25:26):
All right. Well, great. Well, as always a fantastic episode. So once again, if you want to just give some quick contact information and we'll leave some contact information in the show notes as well.

Kathleen Jennings (25:39):
You can reach me at my email, which is kj j@wimlaw.com.

Thom Jennings (25:45):
All right. And as always, please consider sharing liking. We're we always looking for topics? So if you want to send in a question or if you have a a topic suggestion, we would be more than happy to discuss that on a future episode of Cover Your Assets. And for myself and our resident expert, my sister Kathleen Jennings, we wanna thank you for joining us and we'll see you next time. Uncover your assets.

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The Cover Your Assets-The Labor and Employment Law Podcast is produced by Thom Jennings of the Caronia Media Group. For more details, you can contact him at thom@caroniamediagroup.com.

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