Employees’ Requests to Accommodate a Disability – Employer Requirements & Defenses

Employers, supervisors, and HR need a good sense of what the legal tests are and of available defenses to common employee issues. The following will help you avoid some handicap discrimination pitfalls. There are frequent complaints that businesses always need to call an attorney when employment law issues arise. I hope my website blog and E newsletter may help. We discuss here a common employment issue – employers’ inevitably encountering employees who request some form of reasonable accommodation due to illness or injury, physical or mental. Should a discrimination complaint be filed, some of the defenses analyzed below concern problem employees or unreasonable requests.  An employer should provide the right response to requests for accommodations, always treating the employee with empathy and concern. This is particularly so if the employee has been a problem or the requested accommodation appears unreasonable. An employer’s “animus,” bad attitude, is part of the proof of discrimination. Avoid even the appearance of retaliation, since retaliation claims may succeed where discrimination claims fail.


What is a Handicapped / Disabled Employee and the Interactive Process Required in Reviewing a Requested Accommodation?
Massachusetts law defines, as does the Americans with Disabilities Act (ADA), a “handicapped person” as any person who has ” a physical or mental impairment which substantially limits one or more major life activities . . . (b) a record of such impairment; or (c) [is] regarded as having such impairment.” Mass. Gen. L. ch. 151B, sections 1(16), (17). The ADA Amendments Act of 2008 (ADAA) expanded the federal disability protections by widening, among other things, the definition of “disability” so it is less frequently a central issue. The ADAA also made it easier to prove handicap discrimination using the “regarded as handicapped,” by limiting the so-called “substantially limited in working” / “class of jobs” requirement which remains viable under state law. Thus, in Massachusetts, a handicapped person must be able to show that “[a]n impairment substantially limits an individual’s ability to work if it prevents or significantly restricts the individual from performing a class of jobs or a broad range of jobs in various classes” See Izzo v. Genesco, Inc, 171 F. Supp. 3d 1(2016), citing City of New Bedford v. MCAD, 440 Mass. 450, (2003)

The interactive process requires the employer to engage the employee in a direct, open, and meaningful dialogue with the employee. It is designed to identify the precise limitations associated with the employee’s disability and the potential adjustments to the job that could overcome the employee’s limitations. Under Massachusetts law, an employer is not obligated to accommodate a handicapped employee, in most circumstances, by transferring the employee to a new or different position, by providing an indefinite medical leave, or by offering an accommodation inconsistent with a collective bargaining agreement. MCAD Guidelines allow employers to seek medical information (only as much as) needed to determine whether the employee has a handicap or disability and is entitled to an accommodation, and, if so, to help identify an effective accommodation. An employer may conduct focused inquiries in this regard such as asking for a doctor’s letter. The goal is to reach a mutually acceptable accommodation that will allow the employee to be productive. See the MCAD Persons with Disabilities in the Workplace Guidelines at http://www.mass.gov/mcad/resources/employers-businesses/emp-guidelines-handicap-gen.html#VI.%20Post-hire%20Inquiries.

There Is No Protection For Disabled Persons Who Cannot Perform The Essential Functions of Their Job.

Many cases hinge on the requirement that a “qualified handicapped person” is a handicapped person who can perform the essential functions of a job with or without reasonable accommodation. The law protects qualified handicapped persons. The law does not require an employer to hire, promote or retain a handicapped person who cannot perform the essential functions of the job. Primary functions of the job are those duties which must necessarily be performed by an employee in order to accomplish the principal objectives of the position. The MCAD, in determining whether a job function is essential, asks whether removing a given duty from the job would fundamentally change the nature of the job in question. I am helping a company to defend a MCAD case in which the employer has documented very well how a claimed “regarded as handicapped” employee has failed to perform the essential functions. She cancels appointments and misstates the time worked and does not timely complete paperwork. In Johansson v. Department of Corrections MCAD Docket NO. 92-BEM-0102 (2010),in an unusual move, the Commission overruled a hearing officer, finding that the employee could not meet the essential functions of her position which included contact with inmates. This case contains a good discussion about what happens when an employee is out on disability, but never makes clear that she could or wanted to return to work. The employee has a duty to communicate a clear desire to return to her job presently or in the immediate future and to be able to perform the important functions. To help show the significant functions that the employee cannot perform, employers may be helped by a detailed job descriptions in defining those duties.  
 What to do if an Employer Knows about a Handicap Impacting Job Performance?

The duty to initiate a required dialogue often arises when an employer is aware of the employee’s disability, or the disability is obvious, or the employer observes that the employee is having a difficult time on the job. Then an employer has a duty to ask the employee whether she or he is in need of an accommodation of a disability in order to be able to perform the essential functions of the job. Do not ask what the disability is, but sometimes employees volunteer it.

Some Primary Defenses to a Claim for Failure to Accommodate a Known Disability.


If supported by sufficient evidence, an employer may answer a complaint with the following defenses. Remember that not having an employee handbook allows the court or the MCAD to deny affirmative defenses. The following defenses may overlap and not all of them will apply to each situation. Some of these apply to other kinds of discrimination which may have their own defenses.

Undue Hardship. An Employer who can demonstrate that the proposed accommodation would impose an undue hardship on the business is relieved of the duty to reasonably accommodate an employee. Undue hardship means a significant difficulty or expense in relation to the size of the employer, available resources, and the kind of business operation. This defense includes the impact on the ability of other employees to do their jobs and the impact on the facility’s ability to conduct business. The company may be able to show financial hardship and issues caused by the number of employees at the facility, and the expenses and resources of the facility. Size matters!

Egregious Misconduct. An employer does not have to tolerate serious misconduct even if it is related to the handicap Mammone v. President & Fellows of Harvard Coll., 446 Mass. 657, 670 (2006) (An employee with belligerent mania who has committed egregious workplace misconduct damaging to an employer such that any employee would be fired for the same acts is unable to prove that he is a “qualified handicapped person” performing the essential functions of the position. Current alcoholism or drug addiction that is impacting the employee’ s work provide a basis for terminating an employee due to misconduct. One company, with my advice, terminated a belligerent employee who admitted to recreational marijuana use on the premises.  For any of the defenses, e.g. if an employee lies about important matters at work, prepare well documented writeups, have the employee sign an acknowledgment at the bottom and place it in the personnel file. We have a form that we recommend be cut to fit.  Caution: do not falsely accuse an employee of some criminal or other bad conduct or provide a false reason to support a defense or rationale. Doing so may provide proof of the employer’s “pretext” for the negative actions leading to liability.

Excessive Absenteeism.  The MCAD and courts generally hold that an employer does not need to accommodate indefinite or unpredictable absences. However, an employer must make an individu­alized inquiry and have ready evidence for a defense if it denies such a re­quest. García-Ayala v. Lederle Parenterals, Inc., 212 F.3d 638, 647 (1st Cir. 2000); Where an employee requests a reasonable leave of absence as an accommodation, an employer may not claim the employee’s absenteeism as the justification for termination. However, an employer need not accommodate a chronically absent employee even if the absenteeism is a result of the employee’s disability. See Beane v. Mass. Container Corp., 18 Mass. L. Rptr. 388, 2004 WL 2550470, at *6-7 (Super. Ct. 2004) (employee’s chronic ab­senteeism due to his psychological problems need not be accommodated). An employer must, however, also consider its duties under the FMLA for those with 50 employees and under the Massachusetts Sick Leave Law requiring paid leave for companies with more than 10 employees and unpaid leave for  10 or fewer. See our blog article: http://bizatty.com/ma-business-employment-law/massachusetts-sick-leave-law-does-your-business-need-a-check-up.html. 

Poor Performance. An employer may terminate an employee with a handicap if he or she is unable to meet the employer’s standards of performance, even with the provision of a reasonable accommodation. Tate v. Dep’t of Mental Health, 419 Mass. 356, 363-65 (1995) (plaintiff failed to present any evidence that employer ter­minated her for reasons other than insubordination).An employer may terminate an employee with a handicap for any reason that would result in the termination of any other employee. Disability-based discrimination laws are intended provide a level field for persons with disabilities; they do not require special treatment. See, e.g.McDonald v. Menino, No. 96-10825-RGS, 1997 WL 106955, at *3 (D. Mass. Jan. 3, 1997) (ADA “does not mandate special preference for disabled persons who cannot perform the essential functions of a job”); Garrity v. United Air Lines, 421 Mass. 55, 62-63 (1995) The law “is designed to put individuals with disabilities on equal footing with nondisabled people . . . [i]t is not designed to insulate them from disciplinary actions which would be taken against any employee regardless of his status”).
5.)                 Direct Threats. Disability law does not require an employer to accommodate an individual who poses a direct threat to his or her own health or safety or to the health or safety of others in the workplace. A “direct threat” refers to “an unacceptably significant risk” of substantial harm to the health or safety of the individual or others that cannot be eliminated or reduced by reasonable accommodation. The risk must be identified specifically and can be considered only when it is serious; a speculative or distant risk does not constitute a direct threat.

6.)             Procedural Issues.  Except in unusual circumstances, there is a 300 day deadline to file with the MCAD from the date of the discrimination. Sometimes a plaintiff fails to state a valid claim, leaving out required elements of the claim.

If you have gotten this far without napping or thinking the “law is a donkey,” you may have noticed, as I often do, that legal requirements often present “catch-22s” or the need for balancing in a high wire performance. I would love to hear from you to learn if you find this article helpful and have topics that you would like us to cover.