When dealing with a request for reasonable accommodation, “an indeterminate delay has the same effect as an outright denial,” as the U.S. Court of Appeals for the Second Circuit recently noted.

In Perkins v. City of New York, a deaf employee requested a reasonable accommodation of a video phone to enable her to perform her essential job functions. She did not receive the phone for several months, and then there were technical issues that were not fully addressed for many months. The employee eventually sued for violation of her right to reasonable accommodations under the Rehabilitation Act (the analog to the Americans with Disabilities Act for government employees, using the same standards of analysis). The federal district court dismissed the case, finding that the employer had made “ongoing, reasonable efforts to accommodate the plaintiff, some of which were at least temporarily successful.”

On appeal, the Second Circuit reversed the district court’s dismissal, finding that the employee had sufficiently alleged that the employer had refused to make accommodations. Although, as the district court noted, the employer had made some efforts to provide accommodation, the extended delay effectively functioned as a denial of the accommodation. Moreover, the videophone only worked sporadically, and the employee alleged that she was consequently unable to accomplish certain tasks which resulted in assigned work being taken away from her. Thus, the Second Circuit further noted that, “An ineffective accommodation does not satisfy the requirements of the Rehabilitation Act” (or the ADA).

This case warns employers that it is important to respond reasonably promptly to requests for accommodations – both initially, but also to any developing issues with such accommodations. Failing to follow up can create liability.

Source: Shawe Rosenthal LLP – Fiona W. Ong

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