The last word is often key to ADA accommodations


That’s why I kick so much butt with Americans with Disabilities Act accommodations. As a lawyer, I always have to have the last word. LOL!

(Or say stuff like, “It depends.”)

The ADA duty to accommodate.

The ADA requires an employer to provide a reasonable accommodation to an employee, if doing so will enable that employee to perform the essential functions of the job. The ADA further contemplates that the employer and disabled employee will work with one another to determine which reasonable accommodation(s) may suffice. This is often referred to as the “interactive process.”

The genesis of many ADA lawsuits is that the employer failed to accommodate the employee’s disability. Some of these actions highlight an employer’s complete ignorance of its duty to accommodate. However, many others involve an interactive dialogue getting started, but eventually breaking down without the employer accommodating the employee. Often, the issue in those cases is who bailed on the interactive process? 

Where the employee ends the dialogue, his failure-to-accommodate claim ends too.

Let’s head to the District of Columbia. DC is the home of my law school alma mater, George Washington University Law School, the reason I still have a “202” cell phone number, and the place that originated VIP bottle service.

In Hodges v. District of Columbia (opinion here), the plaintiff worked for the Office of the Inspector Gadget General — I’ll get you next time, Gadget! The plaintiff developed back pain, went to a few doctors for treatment, and eventually stopped reporting to work. The last day Plaintiff reported to work at OIG was July 21, 2010. On July 30, 2010, Plaintiff apprised OIG that he was under a doctor’s care, preventing him from returning to work and “would be unable to report to work for another 4 to 6 weeks. On August 6, 2010, OIG requested a medical certification to support Plaintiff’s leave request. On August 13, 2010, Plaintiff provided OIG with the requested certification. On August 16, 2010, OIG sent Plaintiff a letter denying his specific leave request and proposing a set of accommodations that closely tracked the certification. Plaintiff never responded.

So, let’s break it down:

  • Employee provides a medical certification;
  • Employer offers a bunch of accommodation options based on guidance from the plaintiff”s doctor; and
  • The plaintiff goes radio silent

Oh, this isn’t going to end well for the plaintiff. Isn’t that right, Judge Chutkan:

Given this timeline, and given the fact that the August 16 letter bore the hallmarks of good faith insofar as it offered accommodations that closely tracked the certification, it is clear that the interactive process broke down when Plaintiff failed to respond to the letter.

Thus, the plaintiff’s ADA failure-to-accommodate claim goes down in flames.

Employer Takeaway.

Nice guys finish last. When the employer has the final word in the interactive process, it can often prevail on a failure-to-accommodate claim.

“Doing What’s Right – Not Just What’s Legal”
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