Just as an employer cannot disqualify an individual with a disability from a position because that individual cannot perform a duty that is not an essential function, the employer must also provide a disabled individual with any reasonable accommodations that might be required to enable the individual to perform the essential functions of the position. A possible accommodation might include altering a workplace by replacing stairways with ramps to enable a wheelchair-bound disabled employee to navigate around a work area. However, the reasonable accommodation duty is not limited to requiring employers to make their workplaces physically accessible to disabled persons. For example, an employer may be required to provide a reader for a blind attorney, or a modified work schedule for an employee who needs more time to perform required travel duties of a position than would a non-disabled employee.
The duty to provide accommodations to a disabled employee is not absolute. An employer is not required to provide accommodation allowing a disabled employee to hold a position, if such accommodation would impose an undue hardship on the employer. What constitutes an “undue hardship” varies from case to case, but factors that may result in an accommodation being viewed as creating an undue hardship might include a high monetary cost in the context of the employer’s overall resources; the type of operation; the impact of the accommodation on those operations (such as rendering an employee unable to handle emergencies that could potentially arise on the job, even if most of the time such emergencies do not occur).
Whether an accommodation is reasonable or causes an employer undue hardship cannot be determined on an “across the board” basis. In general, the larger and wealthier that an employer is, the less likely that it will be able to claim that a possible accommodation for a disabled applicant or employee will result in undue hardship. Thus, for example, while a small law firm with two attorney-employees might not be required to hire a reader to accommodate a blind attorney, it is almost certain that a large, corporate law firm could not successfully raise an undue-hardship defense to having to hire such a reader for a blind attorney, if that was the only available accommodation.
Second, courts have consistently held that an employer is not required to restructure the duties of a position by eliminating essential functions in order to accommodate an applicant or employee – time or modified schedule work is often considered a reasonable accommodation. Likewise, an employer is not obligated to create a new position with new duties to enable it to retain a disabled employee or hire an applicant with a disability. The employer’s accommodation duty in a situation where a disabled employee can no longer perform the duties of a position previously performed is limited to allowing the employee to transfer to a vacant position that she can perform, if any such positions exist.
Third, it is important to remember that an employer is only obligated to provide persons with disabilities with a reasonable accommodation–not necessarily the reasonable accommodation preferred by the disabled person. When more than one reasonable accommodation is available, the employer can choose which one to offer the employee or applicant.
Fourth, the fact that a requested accommodation may violate existing company policies does not necessarily mean that the requested accommodation is not reasonable. Courts will use the guidelines discussed above to determine reasonableness.
Finally, both the employer and employees or applicants with disabilities should take proactive roles in exploring reasonable accommodations to allow disabled individuals to hold positions with the employer. If a disabled person leaves it entirely up to the employer to develop a reasonable accommodation to enable him to work, he runs the risk of the employer being able to claim, without contradiction, that no such reasonable accommodation is available. On the other hand, if the disabled individual suggests an accommodation that does not constitute an undue hardship, the burden shifts to the employer to either accept the accommodation or attempt to come up with an alternative accommodation that will, like the disabled individual’s suggestion, allow that person to hold a position. Similarly, from the employer’s perspective, failure to explore proactively and in good faith possible accommodations that will allow an individual with a disability to work for the employer may result in the employer having to accept a less-than-desirable accommodation suggested by the employee. More importantly, the employer’s failure may expose it to liability for discrimination if the employer does not offer a reasonable accommodation and the disabled individual can show that the employer did not make a reasonable effort to accommodate the individual’s disability.