The "reasonable accommodation" requirements under the ADA continue to be a source of questions and confusion for employers.
However, on the topic of whose responsibility it is to raise the issue of a reasonable accommodation, the law has been fairly clea
r in the Second Circuit (which covers Connecticut, New York and Vermont) that it is the employee that bears the burden of making that initial request.
Indeed, back in 2006, the Second Circuit stated that “[G]enerally, it is the responsibility of the individual with a disability to inform the employer that an accommodation is needed.” Graves v. Finch Pruyn & Co., 457 F.3d 181, 184 (2d Cir. 2006).
Yesterday, however, an important decision affirming a jury verdict against Wal-Mart, the Second Circuit clarified that "generally" doesn’t mean "always". The case, Brady v. Wal-Mart Stores (download here), sets forth a whole new range of instances where the employer now has an obligation to reasonably accommodate an employee whose disability is "obvious", even when that disability may only be "perceived":
Indeed, a situation in which an employer perceives an employee to be disabled but the employee does not so perceive himself presents an even stronger case for mitigating the requirement that the employee seek accommodation. In such situations, the disability is obviously known to the employer, while the employee, because he does not consider himself to be disabled, is in no position to ask for an accommodation. A requirement that such an employee ask for accommodation would be tantamount to nullifying the statutory mandate of accommodation for one entire class of disabled (as that term is used in the ADA) employees. We therefore hold that an employer has a duty reasonably to accommodate an employee’s disability if the disability is obvious—which is to say, if the employer knew or reasonably should have known that the employee was disabled.
So what type of response is actually needed from the employer in that circumstance? The Court states that all that is required is that the employer engage in the "interactive process" to work with the employee to determine of the disability needs to be reasonably accommodated.
What does this mean for employers in Connecticut? It raises a whole host of issues. What does it mean that a disability is "obvious"? What is obvious to one person may not be obvious to another. For example, one employer could view the employee as exhibiting classic signs of chronic manic depression, while another may not. Issues such as blindness may be "obvious", but the other categories may not be as "obvious". In the Brady case, the employee had cerebral palsy — which wasn’t exactly the most "obvious" type of disability (particularly given that there are various presenting symptoms of cerebral palsy).
Another issue for employers is the risk of bringing of the issue of a "reasonable accommodation" when the employee may not even be disabled. The employer, in such a circumstance, risks being labeled as an employer who "perceives" the employee has a disability. Thus, the employee could actually be forming the foundation of a disability claim, rather than preventing it in the first place.
In short, employers in Connecticut (and New York for that matter) may want to consider their approaches to "reasonable accommodation". There will not be a one-size-fits-all approach to this issues and this decision just raises a whole new set of questions to think about in dealing with employees who may have disabilities.
The case has a few other issues that were discussed by the Wait a Second blog. It also hasn’t been a particularly good week at the courts for Wal-Mart either.