Chaim Book is a senior partner at Book Law LLP.
Not long ago, a manager asked me what to do about an employee who had, without announcement or paperwork, begun taking every Tuesday off as a mental health day. The manager’s question was not whether the law required him to permit it. He wanted to know how to end the arrangement without getting threatened with a lawsuit. I hear a version of that question frequently, and the instinct beneath it is precisely what puts employers in a vulnerable position, facing potential liability and almost certain legal fees.
Increasingly, the requests reaching HR are for conditions that leave no visible trace: chronic illness, anxiety or other mental health conditions, or the cognitive fatigue that trails a serious infection for months. Employees disclose them more readily than they once did, which is progress. It also means that managers with no training in the subject are improvising answers to questions the law treats with some precision.
The improvisation almost always includes a decision. Grant the request, because refusal feels like an invitation to litigate, or deny it and wait to see whether the employee follows through. Either reflex misunderstands the obligation. What the Americans with Disabilities Act requires is not a correct answer but a genuine exchange, the interactive process, and that process is not a preliminary to the real decision but the substance of the duty itself. An employer that skips it can be liable even when the outcome it reached would have survived on the merits.
Chaim Book
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Return to the Tuesday employee. There may be a medical basis for the request and there may not. Where the need is not obvious, the employer can start by asking the employee to substantiate the condition. The next step is what I call the basic question: With this condition, and with or without an accommodation, can the employee do the job? If the answer is no, the discussion may turn to a leave of absence, which can itself be a reasonable accommodation.
If the answer is yes, the conversation moves to which accommodations might work and whether the one requested is reasonable. Assume the employee’s role includes leading a standing client meeting held on Tuesdays. If the requested schedule would leave that responsibility unperformed, the answer is neither an automatic yes nor an automatic no. It requires someone to determine whether the meeting is an essential function of the position or merely an entrenched habit, and whether that function could be met on a different day or by another person. The inquiry is uncomfortable and unhurried, which is why managers avoid it, and the shortcut they take instead is what a government agency or a plaintiff’s lawyer later dismantles.
Reflexive agreement carries its own cost. An employer that grants an open-ended request without first defining what the job actually demands may find it has quietly relieved an employee of the core of the role, with no record of having intended to. Reversing that a year later is far harder than declining it would have been at the outset, and the colleagues absorbing the difference will have registered the change long before counsel does.
Deciding that the requested accommodation is not reasonable does not end the interactive process either. The employer still has to consider whether some other accommodation would be reasonable and would address the condition.
By the time one of these disputes reaches the U.S. Equal Employment Opportunity Commission, or, in New York, the State Division of Human Rights or the City Commission on Human Rights, the question is rarely confined to what the employer concluded. It extends to what the employer did along the way, and whether any of it can be shown. I have seen defensible positions collapse for no reason other than that the entire history lived in corridor conversations and a scattering of texts, unaccompanied by a contemporaneous record or a second person who was present. An employer that cannot demonstrate it engaged, weighed the request and had a reason for its conclusion is left to litigate from memory against an adversary who has rehearsed the account many times.
Avoiding this requires deliberateness at a few junctures. A limitation, once raised, should be met in writing, if only a brief acknowledgment that the request has been received and warrants a conversation, because that note will outlast every recollection of what was said. Where the request rests on a medical condition that’s necessity is not self-evident, the employer is entitled to ask for supporting information from the treating provider, an entitlement most decline to exercise out of a misplaced sense of intrusion. The essential functions of the role should be identified honestly before any determination is made, since that distinction ordinarily decides whether a proposed accommodation is reasonable. And any consequential conversation about accommodation or discipline should include a second person, so that the record does not reduce to a single manager’s memory.
One consideration has nothing to do with documentation. However these conversations proceed, and however a termination that follows one is handled, the employee should be treated with evident respect. People who believe they were dealt with fairly seldom go looking for a lawyer, and those who do, having been handled poorly, tend to find a sympathetic audience wherever they land.
The employers who end up defending these cases are rarely the ones who weighed a hard request and came out wrong. They are the ones who never truly engaged with it, and had nothing to point to when it escalated. An accommodation request is not a problem to be closed out. It is a decision the law expects you to actually make, in the open and on the record.