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:
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
