Employment & Labor Insider

Happy Friday. The feds are back in business, and I can confirm it because I had a live email exchange yesterday with an investigator from the Equal Employment Opportunity Commission. Woo-hoo!

The EEOC has a quorum now and a Republican majority, and we are expecting some developments, as Frank Shuster discusses here and as I have discussed here. We’ll keep on keeping you posted.

"America's back in business, baby!"

Meanwhile, I thought it might be helpful for employers and beginners to have a reasonable accommodation guide. A lot has changed over the past few years, and I do not expect the new EEOC to have any qualms about enforcing these requirements.

I’ll focus on federal law, but do also be aware of any state law requirements that may apply to your business.

When does federal law require reasonable accommodations?

Right now, the accommodation obligation applies to the following:

• Disabilities, required by the Americans with Disabilities Act or the Rehabilitation Act of 1973 (for federal contractors).
• Pregnancy and pregnancy-related conditions, required by the Pregnant Workers Fairness Act, which President Biden signed into law in December 2022.
• Lactation, required by the PWFA and the PUMP for Nursing Mothers Act.
• Religion, required by Title VII.

Are the employer’s obligations different depending on the category?

Of course! Accommodations for disabilities, pregnancy, and lactation have similarities but are different. Religion is in a class by itself. I’ll focus on what they all have in common.

"Surely you didn't think we were going to make these laws easy to follow!"

What should we do in all cases?

First, your handbook should include a short “reasonable accommodation” policy. All it needs to say is that reasonable accommodations will be made in these four situations (and as required by state law) and whom to contact in the event of a need for accommodation. Normally, the contact would be someone in Human Resources, but if you don’t have an HR department, you’ll have to designate someone else.

Second, your designee should be trained in handling reasonable accommodation requests. In advance. If the designee is not an HR professional who already knows what to do, he or she may have to get formal training from a reputable source. Don’t skimp on this. You'll thank me someday.

Third, there are no hard-and-fast rules about how to accommodate. Each situation will be different, based on the job, the work environment, and the reason for the request. If your personality is the “hard-and-fast” type, you probably should not be handling accommodation requests. It'll just make you miserable.

Fourth, the EEOC prefers that an employer first try to accommodate in a way that requires the least change to the employee’s current situation (that is, same job, no cut in pay, no reduction in responsibility or status). A lateral transfer should be considered only if the first option won’t work. A demotion, pay reduction, or change to part-time should be considered only if the first two options won’t work. A leave of absence should be considered only if the first three options won’t work. (However, if the employee requests a "lesser" option, then you can go with that immediately.) Termination of employment should always be the last resort. 

Fifth, if an employee needs a reasonable accommodation that would not be an undue hardship but you refuse to provide it, then your company will be liable. 

"Tell me something I didn't already know. Sheesh."

What process should employers follow?

This process should work for all types of accommodation requests:

Step 1: If applicable, confirm that an accommodation is needed. In many cases, the employee’s situation may be obvious (for example, she’s seven months pregnant, or you know he's returning to work six weeks after his heart attack). If it’s obvious or you already knew about it, don’t confirm. On the other hand, if it is not obvious (for example, she says she’s eight weeks pregnant, or he claims to have hypertension) and you had no prior knowledge, then you might need to get something from the employee’s health care provider.

Step 2: Determine whether the requested accommodation could cause any problems in the workplace. If not, grant it and go to Step 5. If you think there could be a problem, go to Step 3.

Step 3: Engage in the “interactive process.” Schedule a meeting with the employee to discuss why the requested accommodation may be difficult and to “brainstorm” with the employee about other options. Ideally, you and the employee will reach agreement on an accommodation that works for you both. If so, adopt it and go to Step 5. If not, go to Step 4.

Step 4: Consult with your lawyer. And follow your lawyer’s advice. If you are not able to reach agreement on an accommodation after engaging in the interactive process, consult with your employment lawyer about what to do next. You may be able to get other suggestions from the health care provider. A leave of absence or termination may be necessary. Whatever you decide, create at least one “non-privileged” document explaining the accommodation request, what you did to explore alternatives, the reasons that the original proposal and the alternatives would not work, and the reason for your ultimate decision. Then go to Step 5.

Step 5: Let the employee know the decision, document, and follow up periodically.

Wow, Robin, this is fantastic! Do you have any other tips?

I do! Four more:

• Some accommodations are not “reasonable.” The courts have said there are accommodations that employers generally do not have to make. Most or all courts say that it’s not reasonable to transfer or fire the employee’s supervisor. Some, but not all, courts say that an employer doesn’t have to promote an employee. The U.S. Supreme Court ruled years ago that you don’t usually have to give an employee with a disability “super-seniority” in violation of a non-collectively-bargained seniority policy. That also applies to seniority policies in collective bargaining agreements.
• Be careful about religion. I’ve warned about this in the past. You can’t refuse to accommodate because (1) you think an employee’s beliefs are irrational or stupid, or (2) the employee is not a member of an established and recognized religion or denomination. Also, if you need confirmation (get it?), you’ll have to tailor your request to the employee’s faith. For example, if your employee is a Roman Catholic, you should be able to ask for a letter from the employee’s pastor or bishop, or look it up in the Catechism online. If your employee is a Baptist, you should be able to get a note from the pastor. But if your employee has a “personal” faith that is religious in nature, there may be no outside source who would be able to provide confirmation. In that case, you may have to settle for an explanation from the employee.
• Don't forget these "employer-friendly" rules. You don't have to make accommodations for needs that you don't know about. (What a relief, huh?) You have the right to choose the least expensive or easiest accommodation alternative, as long as it is effective for the employee.
• This goes for applicants, too. I've been talking about employees, but you also have to make reasonable accommodations for job applicants in appropriate cases.