Reasonable Accommodation

Rob Wiley: My name is Rob Wiley, and today I'm going to be speaking with Austin employment lawyer, Colin Walsh, about reasonable accommodation for individuals with disabilities. Now, Colin, most of the laws that we have out there prohibit you from doing things. You can't refuse to hire someone because she's a woman. You can't fire someone because of their religion. But with the Americans with Disabilities Act, is it possible to violate that law by simply doing nothing?

Colin Walsh: Yes, that is correct. Under the Americans with Disabilities Act and under Texas law, for that matter, an employer has a duty to provide a reasonable accommodation to an employee with a disability.

Rob Wiley: So, what are some examples of reasonable accommodations that an employer might be required to give?

Colin Walsh: So, this would be an issue that I would strongly encourage somebody to talk to an employment lawyer about to weigh the pros and cons of the particular case or the accommodation that you're seeking. It is a fact- intensive inquiry, but some general, reasonable accommodations would include things like, leave, modified work schedule, perhaps modified job duties. Temporary reassignment in certain circumstances can definitely be a reasonable accommodation, especially if they give it to other people.

Rob Wiley: Yes, and I think that the courts have said over and over again that whether or not an accommodation is reasonable is going to depend on that particular job. But I think there's three factors that I would look for. How inherently reasonable is it? You know, if you need an ergonomic keyboard because you have some sort of carpal tunnel type of syndrome –

Colin Walsh: Yes.

Rob Wiley: – well, that's very reasonable. That's just getting a new keyboard. I think another thing that you look at is whether or not the accommodation is given to other people.

Colin Walsh: Yes.

Rob Wiley: I mean if someone is saying I want to be able to work from home, well, that could be a big deal. That could be unreasonable to ask that, but if other employees in the same job are being allowed to telecommute, then I think that's pretty good evidence that that would be a reasonable accommodation. And then the third thing that I would look at is whether or not it was given to the employee in the past. And we see this a lot, too, where the employer has no problem giving a particular accommodation and then all of a sudden a new supervisor comes in and with that new supervisor, all of a sudden they're not going to give that accommodation. So, let's say that somebody feels like they need an accommodation in the workplace. They need a modified work schedule or, or they need short- term leave or something like that. What's the process of, going about asking for that reasonable accommodation?

Colin Walsh: Well, that is the process. So, you go and you ask for that accommodation. And what's particularly neat about the ADA requirement is that the employer can't just fire you because you asked. The employer also has an affirmative duty to engage in a conversation with you to try and find a reasonable accommodation that they can provide if, for example, they say a modified schedule doesn't work for them. And that's something that is pretty unique to the ADA.

Rob Wiley: Yeah, and I've heard that described as an interactive process where both the employee and the employer ought to work together to see if there is an accommodation that is out there.

Colin Walsh: And I think this is an area that an employment lawyer would really be able to help an employee with, is working with the employer to find what would be a reasonable accommodation, what could the employer do to allow this employee to get back to work and be with them.

Rob Wiley: Well, and I think this is also one of those things where in a perfect world, when you go to your supervisor, when you go to human resources and you say I'm going to need a modified work schedule, they would sit down with you, they would look at your hours, they would look at your duties, they would decide whether or not that's reasonable. But all too often, that's when the retaliation begins.

Colin Walsh: Yes.

Rob Wiley: The supervisor rolls his or her eyes and, and, and says this person's going to be a burden. I'd much rather have somebody who is healthier who didn't have this disability. And if you have an attorney who's representing you, that attorney can make sure that you're protected by the anti- retaliation provisions, and I think also get the company to take your request that much more seriously.

Colin Walsh: Absolutely. I would definitely agree that an employment attorney is going to be able to work with the company in a better fashion to make sure that they are complying with the law and providing you that accommodation that you need.

Rob Wiley: Well, thank you, Colin.