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Expanding Accommodations

Thursday, March 1, 2012
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Following the passage of the Americans with Disabilities Act Amendments Act in 2008 and the issuance of the Equal Employment Opportunity Commission's final ADAAA regulations this past spring, one thing is now fairly clear:

When confronted with requests for accommodations, employers should no longer use up precious time and energy questioning whether the requesting employees are disabled under the Americans with Disabilities Act. Rather, they should engage employees in individualized, interactive processes and expend legitimate efforts to assess whether there are any reasonable accommodations that would allow them to do their jobs.

Employers must also take into account that the ADA remains a context-based statute and an accommodation request that works in one set of circumstances (e.g., a specific industry, position or disability) might not be appropriate in another situation. Therefore, in this post-ADAAA world, the onus is very much on employers to be flexible, open-minded and creative when considering and, ultimately, offering accommodations.

In this environment, the courts are also showing a willingness to consider the possibility that an increasing number of accommodations could be reasonable. For example, in its Aug. 10 ruling in Nixon-Tinkelman vs. New York City Dep't of Health and Mental Hygiene, the U.S. Court of Appeals for the Second Circuit reiterated its long-standing position that employers might have to provide employees with commuting assistance as a reasonable accommodation.

In Nixon-Tinkelman, the plaintiff -- a woman with multiple disabilities -- alleged her employer violated both the ADA and the Rehabilitation Act by failing to accommodate her with respect to her commute to work. The Second Circuit reversed the district court and reaffirmed its belief that there is nothing inherently unreasonable about such an accommodation. The court went on to explain that whether any specific commuting accommodation is reasonable is a fact-specific determination.

This holding follows on the heels of 2010 decisions by both the Third Circuit and the Ninth Circuit holding that, because the ADA contemplates shift changes and modified work schedules as reasonable accommodations, employers might have an obligation to alter the shifts of disabled employees, if necessary, to better enable them to commute to work despite limitations posed by their disabilities (e.g., moving an employee to the day shift to accommodate a visual disability that prohibits driving at night).

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To reiterate, it is more important than ever for employers to seriously consider accommodation requests. Even if one seems unreasonable on its face, employers should actively participate in the interactive process, explore what is at the core of the request and put in the effort to determine whether or not any reasonable accommodation might exist that would allow that employee to perform the essential functions of his or her job.

Expending that effort up front could very well keep you out of court down the road.

Paul Salvatore is the co-chair of New York-based Proskauer's global labor and employment law department. He can be emailed at psalvatore@proskauer.com. Joshua Stein, senior counsel at Proskauer, contributed to this column. He can be reached at jstein@proskauer.com.

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