If even the U.S. Equal Employment Opportunity Commission (EEOC) and the courts cannot agree how far the Americans with Disabilities Act’s (ADA) accommodation obligation extends, how is an employer supposed to do so? As we noted recently, the Sixth Circuit Court of Appeals (covering Kentucky Michigan, Ohio, and Tennessee) has determined that the obligation does not require employers to allow employees in “interactive” jobs to work from home “up to four days a week.” As we mentioned earlier, the Sixth Circuit decision is good news for employers, but we also cautioned against reading the decision to mean working from home would never be a reasonable accommodation. Furthermore, the flip-flopping that happened in that case (first the trial court threw the case out; then a panel of the Sixth Circuit reinstated; then the full Sixth Circuit said the earlier appellate panel was wrong and tossed the case out again) emphasized how difficult reasonable accommodation questions can be.
The sheer number of reversals in the earlier case underscored the difficulties employers face when assessing accommodation issues when even the supposed legal experts cannot agree on whether the refusal of an accommodation violates the ADA. Given these challenges, it would be easy for employers to throw up their hands, but the stakes are too high to simply ignore the problem. Instead, employers must do all they can in order to minimize the legal risk they face when addressing accommodation requests. Some best practices include:
- Consider every request on a case-by-case basis. Policies and flow charts can help overworked HR professionals, but the ADA requires that accommodation decisions be made on an individualized basis. Failure to consider an accommodation request because it goes against a company policy, without further consideration, is a surefire way to risk ADA liability.
- Communicate regularly with the employee. The ADA’s “interactive process” is called that for a reason: It’s both “interactive” and a “process.” As an employer, you are generally entitled to understand the underlying need for a particular accommodation, and it can be helpful for the employee to understand any potential roadblocks or hurdles with his or her proposed accommodation. Talking through these issues with the employee on the front end can help get the employee invested in the process and gain buy-in on whatever decision is ultimately made.
- Consider other accommodations. If, following an interactive discussion with the employee, you conclude that you truly cannot provide the accommodation the employee suggests, take some time to consider whether other accommodations may be available. The ADA invites creative thinking and problem solving, and working to find a mutually acceptable solution with an employee will almost certainly lead to a better outcome than outright denying an accommodation request.