By: Alan Glickman, Esq.
If you are anything like many employers, your reaction upon hearing the term “reasonable accommodation” will mirror the stages of grief—denial, anger, bargaining, depression, testing, and finally acceptance.
Denial: “You want me to change our policy just for you? No. That can’t happen. We have policies for a reason, so we could not offer that, even if we wanted to.”
Anger: “Forget it! If you keep pushing this, you’ll only get yourself in trouble!”
Bargaining: “Ok, look, what you’re asking for is not going to happen, but how about we work on something completely different?”
Depression: “This is a disaster! Legal even told me I can’t fire this guy. I have no I idea what I am supposed to do.”
Acceptance: “Fine, we’ll try it for a week and you’ll see you’re being ridiculous.”
* 1 week goes by *
“Huh. That was… relatively painless and things are still running efficiently. Of course, that could all change, but for now I guess we will let this continue.”
This process, that can last anywhere between hours and months, is neither efficient nor risk-free. In fact, the Equal Employment Opportunity Commission (EEOC) has often found that an employer can be liable even when it gives the employee the accommodation they requested if there was what it calls an “undue delay.”
How much of a delay is an undue delay? While I cannot give you an exact timeframe, since much depends on what the employer has been doing during that time, there have been EEOC decisions finding even three months is too long. If part of the process relies on a third party that you do not have any control over, that timeframe could be extended, but you can be sure that taking the time to work through those 5 stages of reasonable accommodation grief is not going to be looked on favorably.
The trick is to make sure you are prepared ahead of time, so that when an employee asks for an accommodation, you are ready to handle it. Make sure you and your management team know your legal obligations, such as when you have an obligation to provide accommodation, and when it is just a matter of employer discretion. Make sure you and your management team know what kinds of accommodations are possible for your employees, and what kinds of accommodations might be considered an “undue hardship.” Make sure you have a clear protocol for handling requests for accommodation that includes what steps the supervisor should take upon receiving the request, who has the authority to approve or deny the request, and with whom to consult if you are unsure and want some support in the eventual decision.
At Luchansky Law, we have extensive experience preparing policies, providing guidance, and partnering with employers to enable them to be prepared for and confidently respond to their employee’s requests for reasonable accommodations. If you are looking for a new comprehensive reasonable accommodation policy, someone to review the policy you already have, or legal support when considering complicated requests, email me at alan@luchanskylaw.com, or call me at 410.522.1020.
