Once an employee notifies their employer about their disability, the employer may become obligated under the Americans with Disabilities Act (ADA) to engage with the employee in the “interactive process.” The goal of this process is to help the parties reach agreement on one or more accommodations that can be implemented to allow the employee to continue to perform their essential job duties. Once notified of an employee’s disability, the ADA requires employers to engage in “good faith” efforts to accommodate the disabled employee. To satisfy this requirement, an employer must promptly meet with the disabled employee to discuss and select accommodations and they must provide the selected accommodations unless it would impose an “undue hardship” on the employer. The ADA’s rules apply to employers with 15 or more employees.
As discussed in our previous post, employers may not be required to provide accommodations in certain situations. However, an employer who refuses to provide an accommodation for a disabled employee who requests one may be liable for disability discrimination. This type of disability discrimination is referred to as “failure to accommodate.” If an employee brings this type of disability discrimination action against their employer under the ADA, a court will assess whether the employer made a good faith effort to accommodate the employee’s disability.
A failure to accommodate claim can expose an employer to liability for various monetary and non-monetary remedies. Monetary remedies include reimbursement for back pay, future pay, and attorneys’ fees. Non-monetary relief can include reinstatement of the employee’s position or requiring the employer to implement a specific accommodation. Compensatory damages may also be available, which cover additional out-of-pocket costs caused by the employer’s discriminatory behavior, such as medical costs. Compensatory damages can also compensate the employee for emotional pain that they endured as the victim of discrimination, including mental anguish, inconvenience, and loss of enjoyment of life.
If the employer cannot demonstrate that they made a good faith effort to consult with the employee and identify effective accommodations, it could expose them to additional liability for punitive damages. A court would impose punitive damages to penalize an employer who knowingly or recklessly infringed upon a disabled person’s rights under the ADA. An employer’s failure to discuss reasonable accommodations with an employee who requests one is evidence of an employer’s knowing or reckless violation of the ADA, which could carry stiff penalties.
If you are experiencing disabling long-term symptoms of COVID-19 and your employer refuses to discuss reasonable accommodations with you, consider pursuing a charge of disability discrimination with the Equal Employment Opportunity Commission (EEOC). If you believe your employer has infringed upon your rights by violating the ADA, you must act swiftly to enforce the law, as there are strict deadlines for filing a charge of disability discrimination. You must file a charge of disability discrimination within 180 or 300 days of the alleged discriminatory act, depending on the state you live in. If you need assistance with this process, an attorney from our Pandemic Legal Assistance Network (PLAN) may be able to help.