Best Ohio Disability Discrimination Attorney Answer: How specific do I need to be in my request for a disability accommodation at work? If requesting a disability accommodation from my evil manager would be futile, do I still have to make the request? Does my employer need to accommodate my disability?
As our employment law lawyers have blogged about before, the Americans with Disabilities Act (“ADA“) and Ohio Revised Code § 4112 each make it unlawful for an employer to terminate, refuse to hire, or otherwise discriminate against an employee because of the employee’s disability. (See Can My Boss Fire Me Because He Thinks I’m Disabled?; My Job Is Discriminates Against Me Because I’m Disabled!; Can I Be Denied A Job Because Of Prescribed Medications?). Additionally, both the ADA and R.C. § 4112 require that employers provide disabled employees and applicants with reasonable accommodations that help disabled workers continue to work. (See ADA Law: How Do I Get A Disability Accommodation At Work?; Can A Service Dog Be A Disability Accommodation At My Job?; Disability Discrimination: Can I Get A Work Accommodation?; Can Late Arrival To Work Be A Disability Accommodation?).
What is a reasonable accommodation at your job? A reasonable accommodation can be any measure that will allow a disabled employee to substantially perform the duties of her job, without causing an undue burden on the employer. A reasonable accommodation could include modification of duties, special equipment, changes to the schedule, or changes in how training is conducted or how matters are communicated.
A disabled employee who feels that her employer has refused to accommodate her disability may have a disability discrimination claim. To make a prima facie case (which is employment lawyer talk for “to make a claim”) of failure to accommodate, an aggrieved employee must establish that (1) the employee is disabled; (2) is otherwise qualified for the position, with or without accommodation; (3) the employer knew of the disability; (4) she requested an accommodation; and (5) the employer failed to provide accommodation.
Once an employer knows that an employee needs a reasonable accommodation, the employer must engage the employee in an interactive dialog aimed at identifying the limitations of the employee’s disability and the accommodations that can be made to overcome those limitations. As a general rule, the employer’s duty to engage in an interactive dialog about accommodations is not triggered until and unless the employee requests such an accommodation.
Like other Circuits, the Sixth Circuit Court of Appeal does not require that an employee use any “magic words” in requesting an accommodation. That is, an employee need not state, “I am requesting an accommodation for my disability.” While there is no bright-line test for what constitutes a proper request and while courts will look at the facts and circumstances of each case, generally speaking, an employee must make some request in order to trigger the employer’s duty.
As employment lawyers, our jobs would be a lot easier if every client we see with a potential failure to accommodate claim had specifically and unequivocally requested an accommodation from her employer. As mentioned above, the employee’s request is an element of a successful claim and the employer’s duty to engage in interactive dialog about accommodation is generally not triggered without such a request. So, when in doubt, it is best to ask the advice of an attorney about what to do when you are actually seeking a disability accommodation from your manager, boss or HR.
However, a recent case decided in the U.S. District Court for the Eastern District Court of Michigan, while ultimately finding for the employer, makes clear that in certain limited scenarios an employee need not request an accommodation in order to trigger an employer’s duty to engage in the interactive dialog. In the case, Deister v. AAA Auto Club, the employee asked the court to find that, “a bare request to review medical records, with no statement that the employee is having difficulty with his job and no indication that the medical records might reveal a work-related limitation, creates an obligation in the employer.” Not surprisingly, the court found that such a scenario could not be interpreted as a request for a reasonable accommodation.
What is interesting about Deister, though, is a bit of dicta included in its analysis of the failure to accommodate claim. The court pointed out that, “there is some authority that suggests an employer could be liable for failure to accommodate even if the employee has not requested an accommodation.” Citing the Sixth Circuit’s decision in Clark v. Whirlpool, which, like Deister, came out in favor of the defendant employer, the court pointed out that when a request would be futile, courts have excused the failure to make the request. In other words, if a disabled employee knows that there is no way that the employer will grant an accommodation, as when the employer has an existing policy that it will not make any changes to job duties, an employee’s failure to accommodate claim cannot be defeated solely on the basis that she did not request an accommodation.
Deister also points out that other circuits have similarly held that the employee’s request as a prerequisite to the employer’s duty is not absolute:
“…an employer is liable for failure to accommodate although the employee did not request an accommodation. For example, the Second Circuit has held 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.” Brady v. Wal-Mart Stores, Inc., 531 F.3d 127, 135 (2d Cir. 2008).”
As a practical matter, a disabled employee should make every effort to make certain that she has unquestionably requested an accommodation. Deister shows, though, that in some very limited circumstances, there may still be a glimmer of hope for an aggrieved employee who has not been as clear in her request as employment lawyers would prefer.
Having to live with a disability is difficult enough without worrying about the effect it may have on your job. If you are disabled or your employer perceives you as being disabled; and you have been fired, wrongfully terminated, discriminated against, demoted, wrongfully disciplined, denied wages, or even think that you might need a disability discrimination lawyer, then call the right attorney to schedule a free and confidential consultation. Call our Ohio employment law attorneys at 866-797-6040. The best option is not to wait. Spitz, The Employee’s Law Firm, and its attorneys are experienced and dedicated to protecting disabled employees’ rights under ADA and Ohio employment law.
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