Most employers know that they have a duty to make a reasonable accommodation for an employee’s disability or job restriction, but what that actually means in practice can be confusing. Statutes that require such accommodation are the Americans with Disabilities Act (ADA), 42 U.S.C. § 12101 et seq., and, in Massachusetts, the Massachusetts Fair Employment Practices Law, General Laws Ch. 151B. To fall under the protection of either statute, the employee must have a physical or mental disability (or handicap) that substantially limits one or more of his or her major life activities. The statutory definitions of major life activity are quite broad and can range from bodily functions to cognitive activities.
An employee’s request for an accommodation triggers a requirement that the employer engage in an “interactive process” with the employee to determine whether an appropriate accommodation is available. Whether the employer has a duty to provide an accommodation is a fact-specific analysis that depends upon the nature of the impairment or restriction, the requirements of the job and – to some extent – how accommodating the restriction will affect the employer. An employer is not obligated by law to make an accommodation if doing so requires it to restructure a job in such a way that does away with one of its essential functions. An essential job function is a duty that’s a fundamental part of the job. A written job description is a useful place to start when determining whether a function of the job is “essential,” but it’s not dispositive.
Whether an accommodation is reasonable is a similarly fact-specific analysis. A “reasonable accommodation” is a modification to the employee’s job (or their performance of the job) that enables them to keep working. Some examples of reasonable accommodations include adjusting schedules, re-allocating some of the work associated with the position or providing tools to assist the employee in performing the work. They can also include assignment to another position; reassignment is a reasonable accommodation under the ADA but is not required by the Massachusetts statute. An employer is not required to make an accommodation that will pose an undue hardship for the employer or will pose a threat to the health or safety of the employee or others.
Because there are so many factors at play in such a situation, an employer that finds itself with a disabled employee and questions whether it is obligated to accommodate the employee’s restrictions – or whether the accommodation it is considering is appropriate in the circumstances – should consult with its legal counsel.
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