Blog written by Makenzie Krause and Mack Reed.
When an employee brings a claim against their employer for failure to accommodate a disability, the employer often argues it was not aware of the disability, and that in any event the employee never requested an accommodation. Because many employee/employer interactions occur through verbal conversations (either on the phone, via Zoom, or in person), employees often have little evidence with which to counter such arguments. Lacking some kind of written record, the case boils down to competing recollections of who said what, and when it was said.
How best to avoid this problem in any given case will depend on the specific facts, but there are some points to keep in mind on how best to make a record of an accommodation request. Because the specifics can be very important, this blog should not be taken as legal advice, and an employee seeking an accommodation should consult with legal counsel as early in the process as possible. With those caveats in mind, here’s some general guidance, and some points to keep in mind about accommodations if granted.
How to Tell the Employer
Look at Employer Handbooks and Policies
If an employee believes she needs an accommodation for her disability to help her perform her job duties, an important first step could be to consult the employee handbook (or other applicable policies) to determine whether her employer requires employees to follow certain steps when making such a request. Some employers detail the steps an employee must follow to request an accommodation, and employees should follow these steps to help ensure the employer is properly on notice. Further, it can be helpful for the employee to locate the relevant portion of the policy and cite to it in conversations with the employer.
Put the Request in Writing
Many employers instruct employees seeking accommodations for their disabilities to contact a representative in human resources. Regardless, we usually recommend that an employee follow whatever procedures her employer has in place for requesting accommodations for a disability. There are no “magic words” an employee must use when requesting such an accommodation. It is important, however, that the employee convey to the employer: (a) that she has a disability; and (b) that she needs an accommodation for that disability to help her perform her job. It is also important that, if the employee makes her accommodation request verbally, she quickly follows-up in writing (for instance, via email) with her employer to document her accommodation request.
What is Gained with an Accommodation
Accommodations are Not Guaranteed
An employer is not required to provide an employee with the exact accommodation she requests for her disability. When an employee requests an accommodation for her disability, her employer usually has a duty to engage in what is known as an “interactive process.” This process requires the employer to work with the employee to help identify a reasonable accommodation that will be helpful for the employee but will not impose an undue hardship on the employer. As part of that process, an employer may ask for additional information regarding the employee’s disability, ideas the employee has regarding potential accommodations, and possibly even a note from a health care provider explaining the employee’s limitations. If an employee fails to respond to these sorts of requests, the employer may not be required to provide an accommodation to the employee as a result.
Employers May Not Retaliate Against Employees Who Request Accommodations
In addition to being prohibited from discriminating against their employees based on their disabilities, employers are also prohibited from retaliating against employees for requesting accommodations for their disabilities.
If you believe that you have experienced retaliation in response to your accommodation requests, please do not hesitate to reach out to legal counsel.
