Condo Media - November 2017 - 43

EQUAL EMPLOYMENT
OPPORTUNITY ACT
IMPACT ON EMPLOYERS AND
CONDOMINIUM ASSOCIATIONS
In light of the Barbuto decision, all employers and condominiums should revisit their policies for responding
to requests for accommodations. The first step in the
analysis should be whether a person is disabled. A
person is disabled if they have a physical or mental
impairment that substantially limits one or more major
life activities.
In the employee/employer context, once it is determined that a person suffers from a disability, the next
question is whether they are "qualified." To be qualified,
an employee must possess the "requisite skill, experience, education and other job-related requirements of
the position" and must be able to perform its essential
function, with or without a reasonable accommodation.
The MCAD defines "essential functions," to include
"those functions which must necessarily be performed
by an employee to accomplish the principal objectives
of the job." Further, under the Equal Employment
Opportunity Act, "[a] job function may be considered
essential for any of several reasons, including but
not limited to the following: (i) The function may be
essential because the reason the position exists is to
perform that function; (ii) the function may be essential
because of the limited number of employees available
among whom the performance of that job function can
be distributed; and/or (iii) the function may be highly
specialized so that the incumbent in the position is
hired for his or her expertise or ability to perform that
particular function."
If an employee meets the definition of a "qualified
handicapped person," then the employer is required to
consider their request for a reasonable accommodation. The EEOC regulations provide that reasonable
accommodations may include but are not limited to
the following: "(i) Making existing facilities used by
employees readily accessible to and usable by individuals with disabilities; and (ii) job restructuring; part-time
or modified work schedules; reassignment to a vacant
position; acquisition or modifications of equipment or
devices; appropriate adjustment or modifications of
examinations, training materials, or policies; the provision of qualified readers or interpreters; and other similar accommodations for individuals with disabilities."
The individual seeking an accommodation, whether
in the employee or housing context, has the obligation
to make the employer or condominium aware of the
need for an accommodation. Such notification does not
need to be formal or in writing. Once a request for reasonable accommodation is made (or if the employee/
resident is obviously disabled and a reasonable person
in the employer's or condominium board's position
should know that employee/resident required a reason-

"[a] job function may be considered essential for
any of several reasons, including but not limited to
the following:
ONE
The function may be essential because the reason the
position exists is to perform that function;

TWO
the function may be essential because of the limited number
of employees available among whom the performance of that
job function can be distributed; and/or

THREE
the function may be highly specialized so that the incumbent
in the position is hired for his or her expertise or ability to
perform that particular function."

E E O C R E G U L AT I O N S
provide that reasonable accommodations may
include, but are not limited to, the following:
ONE
Making existing facilities used by employees readily accessible
to and usable by individuals with disabilities; and

TWO
job restructuring; part-time or modified work schedules;
reassignment to a vacant position; acquisition or modifications
of equipment or devices; appropriate adjustment or
modifications of examinations, training materials, or policies;
the provision of qualified readers or interpreters; and other
similar accommodations for individuals with disabilities."

November 2017

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Condo Media - November 2017

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