The failure to accommodate a disability is one of the most common and most winnable categories of employment case. It is also one of the most preventable — the interactive process the law requires is not complicated, and most reasonable accommodations cost employers little or nothing. When a request is refused outright, the refusal is often the case.
Who is protected
The definition of “disability” is much broader than most workers assume.
The Americans with Disabilities Act, 42 U.S.C. § 12102, as amended by the ADA Amendments Act of 2008 (the ADAAA), defines disability as (1) a physical or mental impairment that substantially limits one or more major life activities, (2) a record of such an impairment, or (3) being regarded as having such an impairment. Congress passed the ADAAA specifically to overturn a series of Supreme Court decisions that had narrowly interpreted “disability.” The statute now instructs courts to construe the term broadly.
Major life activities include not only walking, seeing, hearing, and speaking, but also concentrating, thinking, communicating, sleeping, learning, working, and — importantly — the operation of major bodily functions like the immune, endocrine, neurological, digestive, and reproductive systems. Conditions in mitigation still count: a worker with well-controlled diabetes, epilepsy, depression, or anxiety is still a person with a disability under the ADAAA.
The New York State Human Rights Law, N.Y. Exec. Law § 292(21), defines disability more broadly still. It covers “physical, mental, or medical impairments” without requiring proof that the impairment substantially limits a major life activity.
The New York City Human Rights Law, N.Y.C. Admin. Code § 8-102, uses an even broader definition that has been read to cover a wider range of conditions than either the ADA or the NYSHRL.
The New Jersey Law Against Discrimination, N.J.S.A. 10:5-5(q), also uses a broad definition of “handicap” that reaches many conditions the ADA might exclude.
What a reasonable accommodation actually is
A reasonable accommodation is any change in the work environment or in the way things are ordinarily done that enables a qualified worker with a disability to perform the essential functions of the job. Examples courts have recognized include:
- Modified schedules — later start times for medications that cause morning drowsiness, adjustments for medical appointments, part-time work during treatment.
- Modified equipment or workspace — ergonomic setups, screen readers, quiet workspaces, standing desks, closer parking.
- Leave beyond FMLA entitlement — additional unpaid leave as an accommodation, when the leave is defined and expected to enable a return to work. The Second Circuit and other circuits have repeatedly held that finite additional leave can be a reasonable accommodation, though the analysis is fact-specific.
- Modified policies — attendance policies applied to disability-related absences, dress codes that conflict with medical needs, break schedules for insulin or other treatments.
- Reassignment of marginal duties — leaving the essential functions in place while shifting non-essential tasks.
- Remote or hybrid work — in workplaces that already permit remote or hybrid arrangements, or where the essential functions can genuinely be performed remotely. A request to convert a fully in-office position to full-time remote work is generally not considered a reasonable accommodation, particularly where the employer has legitimate reasons for in-person work.
An accommodation does not have to be the worker’s preferred accommodation. But the employer’s obligation is to engage in a meaningful process to identify one that works, not to reflexively refuse.
The interactive process (federal) and cooperative dialogue (NYC)
Federal courts require an “interactive process” — a good-faith back-and-forth between employer and worker to identify accommodations that would enable the worker to perform the job. The EEOC has treated the interactive process as effectively mandatory when a worker requests an accommodation. Failure to engage in it is often independent evidence of failure to accommodate.
The New York City Human Rights Law goes further. Since 2018, N.Y.C. Admin. Code § 8-107(28) has imposed an affirmative statutory duty to engage in “cooperative dialogue” whenever an employer knows or should know that a worker may need an accommodation for a disability, pregnancy, religious practice, or victim status. The duty is triggered by the employer’s awareness of the need, not only by an explicit request. The statute also requires a written final determination. A New York City employer that flatly refuses without a cooperative dialogue has often violated the law before the underlying accommodation question is even reached.
New Jersey applies an interactive-process requirement under case law interpreting the NJLAD, including Tynan v. Vicinage 13 of the Superior Court, 351 N.J. Super. 385 (App. Div. 2002).
The employer’s defenses — and why they are narrower than they sound
Employers typically raise two defenses to a failure-to-accommodate claim.
Undue hardship. An accommodation that would impose significant difficulty or expense in light of the employer’s size, resources, and operations. The bar is high. Most accommodations are cheap or free; the Job Accommodation Network’s regularly cited data shows a majority of accommodations cost nothing, and most that do cost under $500. Cost alone rarely establishes undue hardship at a well-resourced employer.
Direct threat. An accommodation is not required if the worker’s condition poses a direct threat to health or safety that cannot be eliminated or reduced by reasonable accommodation. The analysis must be individualized, based on medical evidence, and forward-looking. Generalized concerns about a diagnostic label are not enough.
Neither defense justifies refusing to engage. Even when an employer ultimately believes an accommodation is not feasible, the failure to have a good-faith conversation about alternatives is often the basis of liability.
Common patterns of unlawful conduct
The situations that recur:
- A worker discloses a diagnosis or requests an accommodation and is soon after terminated “for performance.”
- A worker returning from FMLA leave asks for a modified schedule and is told the position “does not allow” flexibility, without any inquiry.
- A worker with a chronic condition is fired for absences that were themselves caused by the disability and could have been managed with schedule modification.
- A worker with a mental-health condition is told to “leave personal stuff at home” and treated as difficult when the condition affects work.
- A worker requests accommodation in writing and receives no response — no dialogue, no follow-up, no written determination. Under the NYCHRL, silence is itself a violation.
What to do
If you have been denied an accommodation:
- Put the request in writing. Even if you already made a verbal request, follow up with an email that identifies your condition (in general terms), the accommodation you are requesting, and why. This clarifies the record and starts the cooperative dialogue clock in New York City.
- Ask the employer to engage in an interactive process or, in New York City, cooperative dialogue. Refer to the applicable statute if you feel comfortable doing so.
- Preserve every communication related to the request, the denial, and any explanation offered.
- Get supporting medical documentation. A short letter from your provider that identifies the limitation and the requested accommodation is often the most useful record.
- Do not resign, unless you must. Constructive discharge claims (where the workplace becomes so intolerable that resignation is forced) are recognized but harder than remaining employed while asserting the claim.
- File a charge or complaint promptly. ADA charges must be filed with the EEOC within 300 days in New York and New Jersey. NYSHRL and NYCHRL claims generally have three-year civil-action deadlines. NJLAD generally has two years.
If you were denied a reasonable accommodation, fired, or retaliated against for requesting one in New York or New Jersey, contact Fingerhut Law for a confidential consultation.
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