Home » News » Common Pitfalls Employers Fall Into When Faced with Requests for Reasonable Accommodations under the Americans with Disabilities Act

Dan Schwartz:  I do want to ask you in the time we have remaining on something else, because in some prior episodes on this podcast, we’ve been talking about accommodations for disabilities and the processes there. And I think obviously there was a recent Second Circuit case that we’ve highlighted on our Employment Law Letter blog that talked about the need to provide accommodations even potentially in situations where an employee can already perform the essential functions of the job.

So with that sort of setup, where do companies typically fall short in the interactive process for disability accommodations?

Nina Pirrotti: Dan, over the years I’ve tracked trends in my own practice, and I will tell you that disability discrimination cases and FMLA interference, retaliation cases are among the most robust aspects of my practice and I think probably that’s because too often employers get this wrong.

First of all, they confuse their obligations under the ADA, Americans with Disability Act and the state counterpart under the Connecticut Fair Employment Practice Act with their obligations for the FMLA. And I actually had an employer tell my employee who was seeking a reasonable accommodation for her disability – Well, you know what you have FMLA protection in place if you need it, you really don’t need the interactive dialogue or for us to discuss accommodations with you. Again, it’s just not being informed about your obligations and I obviously, Dan, the biggest pitfall for employers is not engaging in the interactive process.

So, the employee proposes something and the employer says, no way. I can’t do that. She wants to work fully, remotely, forever. No, I can’t do that. But then the employee comes back and says, what if we just do three months? I think I could do three months if the employer then still says no. You are getting to the point where you are actually showing that you’re not engaging good faith in the process.

So even if an employer has to say no, because it’s an undue hardship, the employer has to come back with something else. Something else that addresses the employee’s concern about the accommodation that they need. They have to show undue hardship and if the undue hardship is met, great. Interactive dialogue still requires them to try to brainstorm with the employee and come up with a solution.

And Dan, what does this accomplish? Aside from complying with the law. You have to engage in an interactive dialogue, but it also makes the employee feel heard. Even if you can’t do that particular accommodation, it makes the employer feel heard, respected. It makes them maybe dig down and try to brainstorm with you and come up with solutions.

And at the end of the day, you want a happy employee who’s able to work that caselaw says you have to accommodate even if the employee can do the job without the accommodation, do you want the employee to do the job that and have to work so much harder or have to struggle so much more to do it because she doesn’t have that accommodation in place.

You want the employee to have every resource you can reasonably have available to her to do her job well. You want her to succeed. So again, I see this as a win-win if it’s done properly.

Dan Schwartz: Yeah. I’ve talked previously with clients and colleagues about the interactive process is probably best viewed like a tennis or as I’ve been playing recently, pickleball match, which is back and forth until you essentially win the point or get it right if you can’t, if the conversation breaks down because you’ve proposed a reasonable accommodation as an employer and the employee rejects that, well fine, you’ve done your part, but you can’t just give up on a round just because you don’t like what’s being proposed.

To think creatively and think more about it, so.

Nina Pirrotti: Absolutely.

Dan Schwartz: That’s probably a good way to end here, our discussion. I know you and I can talk forever about this, but I really appreciate you coming on. If there are people who needed a plaintiff side employment lawyer, where can they find information about you?

Nina Pirrotti: I love it. They can Google me, but they could also just Google our firm because our firm is just staffed with some of the most talented lawyers in this area, in the country, in my opinion. So they could Google my law firm, Garrison, Levin-Epstein Fitzgerald, and Pirrotti and take it from there.

Dan Schwartz: Thanks again, Nina, for coming on and sharing your perspective on this podcast.

Really appreciate it. So that will wrap up another episode of From Lawyer to Employer. As always, we’d love to hear from you. If you have any questions or you have a topic that you’d like to hear us address, you can email me at dSchwartz@goodwin.com and feel free to leave us a comment on any of the sites where you get your podcast, whether it’s Spotify, apple Podcasts, or more, we always like hearing from you, and that’s a great way to let others know about our podcast.

So, thanks again for joining us and we hope you listen and subscribe to us as well. Take care.

Host: Thank you for joining us on this episode of From Lawyer to Employer, a Shipman podcast. This podcast is produced and copyrighted by Shipman & Goodwin, LLP. All rights reserved. The contents of this communication are intended for informational purposes only and are not intended or should not be construed as legal advice.

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