Reasonable Accommodation For Disability
As an employer, you have or will have an employee who has a disability. This employee may have been hired with full knowledge of the disability, or the employee may acquire a disability during the course of employment. But what should you do if the employee’s disability is affecting his or her job duties?
Defining A Disability
In North Dakota, for purposes of employment, a disability is defined as: “[A] physical or mental impairment that substantially limits one or more major life activities, a record of this impairment, or being regarded as having this impairment.” N.D.C.C. § 14-02.4-02(5). This definition is modeled after the federal government’s same definition in the Americans with Disability Act, 42 USC 12101(3).
Many disabilities are obvious to the employer that reasonable accommodation needs to be provided in order for the employee to perform a major life activity. What is important for an employer is to take an employee’s declaration of disability with sincerity and not outright dismiss the disability because it is not commonly known or “not that serious.”
Making A Reasonable Accommodation
In order to provide a reasonable accommodation, the employee first must not be able to perform the essential functions of the job without one. A reasonable accommodation is defined as an accommodation by an employer that does not (1) unduly disrupt or interfere with the employer’s normal operations; (2) threaten the health or safety of the individual with a disability or others; (3) contradict a business necessity of the employer; or (4) impose an undue hardship on the employer, based on the size of the employer’s business, the type of business, the financial resources of the employer, and the estimated cost and extent of the accommodation. N.D.C.C. § 14-02.4-02(17).
A reasonable accommodation is not a “one-size-fits-all” remedy. What may be reasonable for a large national retail chain may not be reasonable for a small Mom-and-Pop store on Main Street. Reasonable accommodations vary depending on the disability, the duration of the disability, the severity of the disability, and the financial resources of the employer.
To determine what reasonable accommodation is necessary, the employer may have to engage in an “interactive process” with the employee. This process identifies the precise limitations of the employee due to the disability and some potential accommodations that could overcome those limitations. The employer should make a reasonable effort to help the employee find a reasonable accommodation, but state and federal courts are split on whether it is mandatory for the employer to participate in the interactive process. In North Dakota, it is mandatory for the employer to engage in the interactive process when an employee requests a reasonable accommodation.
It is also important to note that an employee does not have to expressly state he or she needs a reasonable accommodation. Recently the Eighth Circuit, deciding a North Dakota case, held that where an employer knows an employee would not be able to perform an essential job function without reasonable accommodation, the employer should engage in the interactive process.
However, an employer is not required to create a new employment position from whole cloth as a reasonable accommodation. For instance, an employee works for a moving company as a furniture mover. A requirement of a furniture mover is that the employee must be able to lift at least 50 pounds. The employee is involved in a skiing accident and hurts his back. He is no longer able to lift more than 20 pounds without risking further permanent damage. If the moving company is fully staffed at desk positions, it is not required to create an additional office position for this employee, in addition to hiring a new employee to fill the role of a furniture mover.
Potential Liability For Ignoring The Request
Employers who ignore an employee’s request for reasonable accommodations, or who do not participate in the interactive process, face potential liability for violating state and federal laws. Damages assessed against the employer could include reimbursement to the employee for lost wages, compensation for emotional harm, pay the employee’s attorney’s fees, pay the employee’s court costs, or even pay punitive damages as punishment against the employer for the discrimination.
If you are an employer and have questions about rules and regulations regarding employees with disabilities, contact SW&L. The attorneys at SW&L have knowledge and experience in helping employers, business owners, and managers navigate through state and federal laws regarding employment discrimination. Contact our Business Law Team at 701-297-2890, or you can email us below.
The information contained in this article and on this website is for informational purposes only and not for the purposes of providing legal advice. You should contact an attorney to obtain advice with respect to any particular issue or problem.