Terminating the Employment Relationship

C. I NABILITY TO A CCOMMODATE In order to comply with its obligation to engage in the interactive process in good faith, a public agency should carefully assess all options before making any decision to grant or deny an accommodation. Accordingly, an employer should not announce a decision to grant or deny an accommodation at the conclusion of an interactive process meeting. Instead, the employer should end the meeting by promising to the employee that it will carefully consider the options identified. The employer should then meet with legal counsel and human resources professionals, as appropriate, to make an analytical decision. An employer cannot deny an accommodation as unreasonable unless it can support that decision with analytical reasons as to why each proposed accommodation: would be unreasonable; would not allow the employee to perform essential job functions; would pose a significant risk to the health and safety of the employee or others; or would pose an undue hardship on the employer. If an analysis reveals that the employer cannot make any reasonable accommodations, then the employer is usually faced with the decision regarding whether to separate the employee because of the inability to accommodate. 1. S EPARATING D ISABLED A T -W ILL E MPLOYEES For at-will employees, the employer should lay out the reasons for the inability to accommodate the employee in a letter that comprehensively describes: the history of employer’s efforts to interact and accommodate; the reasoning that supports the decision to deny each proposed accommodation; and the potential accommodations the employer pursued. 2. E MPLOYEES W ITH P ROPERTY R IGHTS : D UE P ROCESS For employees who have a property interest in their continued employment, the employer cannot terminate employment, or even place an employee on extended unpaid leave in some instances, without providing due process rights to the employee. 162 The rationale for pre-termination and, in some cases, post-termination due process rights is the same as the rationale for providing such rights during disciplinary proceedings – an employee is having a property right taken away. In order to provide pre-disciplinary due process, the employer must provide a written notice of intent to separate because of an inability to accommodate. The notice should list and attach a copy of all written materials upon which the proposed decision is based, and provide the employee with an opportunity to respond orally or in writing to the proposed decision. 163 The Notice of Intent is similar to a traditional Skelly letter. However, the basis for the notice of intent is an inability to accommodate, rather than misconduct. The letter must comprehensively describe the history of the employer’s efforts to interact and accommodate, the reasoning that supports the decision to deny each proposed accommodation; and the potential accommodations that the employer pursued. All pertinent documents and doctors’ reports should be attached.

Terminating the Employment Relationship ©2019 (s) Liebert Cassidy Whitmore 55