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A Disabled Employee Must Identify the Reasonable Accommodation Being Requested and Ought to Provide Alternative Suggestions

By: Santiago J. Padilla, Esq.

The United States Court of Appeals for the Eleventh Circuit, which covers Florida, Georgia and Alabama, announced in 2009 that a disabled worker must be able to identify and specifically articulate the reasonable accommodation that he or she is seeking. Under Title I of the Americans with Disabilities Act (ADA), an employer must provide a reasonable accommodation to the disability of a qualified employee as long as it does not create an "undue hardship" on the employer. For example, an employer may be required to provide equipment or devices, restructure the job, reassign a disabled employee, provide interpreters or readers, and may be required to modify work schedules, among other things.

It has generally been the position of the U.S. Equal Employment Opportunity Commission (EEOC) that where the reasonable accommodation is not readily apparent, then the employer must make a reasonable effort to identify one. In fact, the regulations implementing the ADA specifically provide that in order to determine an appropriate reasonable accommodation, the employer should engage in an informal, interactive process with the disabled employee. See 29 C.F.R.§1630.2(o)(3).

However, the Eleventh Circuit Court of Appeal's recent decision in Webb v. Donley, No. 09-10050 (11th Cir., 2009), appears to turn that principle on its head. In that case, which was decided two weeks ago (September 14, 2009), the Court specifically stated that "if the employee does not identify a reasonable accommodation, the employer does not have to enter into an interactive dialogue or show undue hardship." There, the plaintiff, who suffered from Fibromyalgia and Myofascial Pain Syndrome, alleged that her employer discriminated against her by failing to allow her to work on a modified schedule. What is odd is that the evidence showed that her employer had previously allowed her to work a modified schedule in the past. The Court, however, held that just because the employer allowed the employee to work a modified schedule in the past, it does not mean that the accommodation requested is reasonable. It seems that the basis of the Court's decision was that the employee did not offer any other type of reasonable accommodation.

While it is unclear whether the Webb decision will withstand legal scrutiny, the lesson to be learned is that a disabled employee must be proactive and suggest numerous reasonable accommodations to his or her employer. Insisting on a single type of accommodation, even if such an accommodation was provided in the past, may be held to be unreasonable. Therefore, a disabled employee should provide and suggest to his or her employer several alternative reasonable accommodations that will allow him or to perform the job.

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If you have any questions regarding the Americans with Disabilities Act or other employment law issues, please do not hesitate to contact me, Santiago J. Padilla, Esq., either at 800-483-7197, at [email protected].

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