5 Step Process For Employers/Landlords to Protect Against Disability Discrimination Lawsuits for Failure to Accommodate

A recent New York State, Appellate Division case (Hosking v. Memorial Sloan-Kettering Cancer Center) serves as a reminder to employers and landlords that they may be exposed to disability discrimination lawsuits if they do not engage in an "interactive process" prior to denying a reasonable accommodation request, even if the ultimate decision denying the accommodation is legal. As detailed in the above referenced case, a court will not even reach the step of determining whether the denial of the accommodation is legal if the employer/landlord fails to follow the proper process in evaluating the request.

To mitigate exposure to disability discrimination lawsuits (for failure to accommodate), employers/landlords should follow these steps:

1) Disseminate Policy: Employers/landlords should inform employees/tenants, in writing, that reasonable accommodations are provided to qualified individuals and of the process to request a reasonable accommodation. Employers should include its reasonable accommodation policy in its employee handbook and landlords should include its reasonable accommodation policy in its application and/or make the policy available onsite.

2) Provide Reasonable Accommodation Request Form: Employers/landlords should prepare a form for individuals requesting an accommodation to complete. Questions on the request form should include:

• General information of employee/tenant (i.e. name, contact information)
• Nature of the disability
• Requested/suggested accommodation(s) 

3) Review and Discuss with Employee/Tenant:

• Review accommodation request
• Request supporting medical documentation if necessary from employee/tenant to properly evaluate request 
• Discuss effectiveness/feasibility/reasonableness of potential accommodation(s) with employee/tenant  

4) Analyze Whether an Undue Hardship Exists: Employers/landlords are not required to provide an accommodation if providing such accommodation would present an undue hardship. Elements an employer/landlord should analyze include:

• Cost of the accommodation
• Resources of the employer/landlord
• Impact on operation of workplace/facility

5) Draft Determination Letter and Submit to Employee/Tenant: The letter should include:

• A summary of the interactive process
• The accommodation provided
• If an accommodation is denied, provide a detailed explanation (e.g. absence of an accommodation that would permit employee to perform essential functions of position, undue hardship)
• If accommodation request is granted, a date to follow up on effectiveness of accommodation

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