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Requests for disability accommodation can be one of the more intimidating and uncomfortable matters to tackle—for employers and employees. Even for experienced HR professionals or managers, these requests can seem like a minefield where it feels as though any wrong move can result in upset employees or potential liability (or both).

What exactly are we talking about? The Americans with Disabilities Act (“ADA”) and Michigan’s Persons With Disabilities Civil Rights Act (“PWDCRA”) entitle qualified employees to reasonable accommodations that allow or aid in the employee’s performance of their job. This makes it critical to utilize an up-to-date ADA accommodation policy. The policy, at the very least, should establish a clear request procedure, which should require the employee to identify the requested accommodation, indicate the need for the employee to submit appropriate medical documentation in most cases, and identify the position responsible for receiving/processing the request.

After the Request for Accommodation Comes In: The Interactive Process

When faced with a request for an accommodation under the ADA or PWDCRA, nothing is more important than good-faith engagement in the interactive process. When an accommodation request is received (regardless of specificity or formality), the employer and employee both have an obligation to engage in what is called the “interactive process.” That process is a dialogue between employer and employee where both sides, working from appropriate medical documentation, explore what the employee needs to be successful in the work environment and talk through the pros and cons of different approaches to handling that. It is a collaborative discussion rather than a speed bump on the way to a one-sided decision: the objective must be working together to identify appropriate and reasonable workplace accommodations. Abandoning or failing to engage in the process can create legal risk, as courts generally expect both parties to participate in good faith. While not every accommodation request will be reasonable, or operationally feasible, the ADA requires good-faith discussion before any decision is made.

There is no one-size-fits-all approach when determining whether an accommodation request is reasonable. Each request must be evaluated on a case-by-case basis, taking into account the essential functions of the position and operational realities. A proposed accommodation is not reasonable if it removes an essential function of the job. Courts will consider whether a job function is essential based on a three-part test; (1) the position exists to perform the function, (2) a limited number of employees are available that can perform the function, or (3) it is highly specialized. During the interactive process, consider the employee’s specific limitation (the basis for the requested accommodation), the effectiveness of the proposed accommodation, and whether the accommodation would create an undue hardship for your organization. Remember the undue hardship analysis is a high bar and requires a showing that the accommodation is financially or operationally infeasible.

Integral to this review is the interactive process meeting—or set of meetings. These can be tricky, but can be managed if you follow a few Dos and Don’ts:

Hot Topic: Remote Work As An Accommodation?

Employers seem to find themselves inundated with requests for remote work arrangements, often citing disability accommodations as a reason to compel it. No statute, regulation, or governmental guidance requires that remote work be permitted as a reasonable accommodation, but certain guidance strongly suggests it is an option for someone who can do their work from home when the workplace itself presents a problem based on a disability.

Flexible work schedules (including remote work or hybrid schedules) are recognized as possible accommodations under the ADA. However, even with the advent of new and more connective technologies, pre-pandemic case law is still the starting point for courts. The courts still look to a 2015 case, which held that in-person attendance is presumed to be a prerequisite to the essential functions of most jobs (especially in “interactive” positions). That decision has been relied upon even after the societal shift towards remote work brought on by the COVID-19 Pandemic.

In considering whether in-person attendance is an essential function of the job, courts will consider the employer’s judgment, the job descriptions written before litigation, and the EEOC’s 2003 guidance on remote work. Despite being over two decades old, courts continue to rely on the factors set out in the EEOC guidance, including the following:

• The employer’s ability to supervise the employee adequately;
• Whether any duties require certain equipment or tools that cannot be replicated at home;
• Whether the position requires face-to-face interaction with coworkers, clients or customers; and
• Whether the position requires the employee to have immediate access to documents or other information only in the workplace.

It is also crucial to keep in mind that an accommodation must actually resolve or mitigate a disability-related limitation. An employee without a disability likely has no legal right to request creation or continuation of a remote work arrangement. And, importantly, if an employee could be just as easily accommodated at the office as they could be at home, then remote work may not be the only or best accommodation option. Employees with disabilities are entitled to any accommodation that addresses their limitations, not their preferred accommodation. This means an employer can choose between viable alternatives.

Lastly, it is important to keep an eye on any further EEOC guidance related to remote work. Recently, the EEOC issued an updated FAQ on this subject in reaction to the current administration’s directive to require most federal employees to return to in-person work. The FAQ sheet reiterates that remote work must be evaluated on a case-by-case basis and still recognizes remote work as a reasonable accommodation, but only if it falls into three categories: (1) accommodations that enable applicants with disabilities to participate in the application process; (2) accommodations that enable employees with disabilities to perform the essential functions of their positions; and (3) accommodations that enable employees with disabilities to enjoy equal benefits and privileges of employment as are enjoyed by employees without disabilities. The FAQ unsurprisingly states that “telework” or remote work that does not serve one of these three purposes, such as remote work that is primarily for the employee’s benefit, is not recognized as a reasonable accommodation under the ADA. Although the FAQ is aimed at only federal employees, it may foreshadow how the EEOC may approach this issue outside of the federal sector.

Conclusion

Your organization should maintain an up-to-date ADA accommodation policy that clearly explains how employees can request an accommodation. Keep in mind that an employee’s failure to submit a written request does not relieve your organization of its obligation to engage in the interactive process. Once a request is submitted, remember that rather than a one-sided determination, the interactive process is intended to be a collaborative process, in which your organization and the employee work together to identify reasonable and effective workplace accommodations. Although the ADA does not require your organization to provide an employee with their preferred accommodation, you should still approach this process with an open mind and be prepared to consider reasonable and practical alternatives, even if they differ from the employee’s request.

Lastly, requests for remote work should be evaluated under the same standards as any other request for a reasonable accommodation. At the same time, your organization should recognize that, for many positions, regular in-person attendance remains presumptively a prerequisite for most positions.

If you encounter a challenging accommodations request or would like any further guidance on this topic, the employment law experts at Fahey Schultz Burzych Rhodes PLC are standing by to assist.

This article is for general informational purposes only and does not constitute legal advice. Contact our office to discuss your specific situation.