Maxine Neuhauser, Member of the Firm in the Employment, Labor & Workforce Management practice, in the firm’s Newark office, was quoted in Law360 Employment Authority, in “Details Key to Worker ADA Requests, 4th Circ. Ruling Shows,” by Anne Cullen. (Read the full version – subscription required.)

Following is an excerpt:

A recent Fourth Circuit decision finding that a disabled Virginia town manager didn't trigger the Americans with Disabilities Act's protections through his petition for a less daunting work environment shows how workers' accommodation requests can come up short if they lack details, experts say.

An appeals court panel backed Abingdon, Virginia, on Tuesday in former town manager Gregory Kelly's lawsuit alleging that the mayor and other local leaders ignored his push for adjustments that would ease his anxiety, depression and high blood pressure, conditions he said were exacerbated by the town's threatening, unprofessional workplace atmosphere.

The Fourth Circuit found that Kelly's case failed because he didn't specifically mention his disabilities in his request, or draw a clear line between his conditions and how the sought-after adjustments would affect his health. Employment law attorneys said the opinion, which was published, illuminates the hurdles workers must meet when seeking disability-related workplace changes. …

'We're Not Going To Make the Employer Guess'

Experts said businesses can also use Tuesday's ruling as a guide when sussing out whether a worker asking for a change has invoked federal protections.

Epstein Becker Green member Maxine Neuhauser, an employer-side attorney who has a focus on disability and accommodation issues, said the decision pushes back on a growing body of case law that presses employers into more of a proactive role in ADA accommodation discussions.

"In this instance, there seemed to be some kind of rebalancing, I would say, of the scales," Neuhauser said. "In decisions in recent years, we've seen increasing obligation on the employer to ask and be prescient and raise the issue, but in this case, the court said, 'You know, we're not going to make the employer guess.'"

Typically, the ADA kicks in when a worker lobs a request. However, the EEOC has also said in its materials that an employer should start the interactive process without being asked if they know their employee has a disability that is interfering with their job, and knows that the condition hinders the worker's ability to seek an accommodation.

Neuhauser said that in practice, that last prong "falls away," and she advises her clients to be proactive in certain cases. For example, if an employee whose job requires a lot of walking comes in one day on crutches, she said the company should reach out and see what adjustments can be made.

"Where an employer sees that an employee appears to be unable to perform their job, or an essential function of their job, the employer can and should — there's an obligation — raise it," she said. "There's no harm in asking if there's something someone needs."

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