You probably already know that the ADA (and the ADAAA) protects qualified individuals with disabilities from discrimination. Title I applies to the workplace. There’s more though. Built into the definition of discrimination is failure to provide reasonable accommodations to qualified individuals with disabilities in hiring and during employment. In other words, Title I of the ADA includes a “thou shalt” and a “thou shalt not”. It first says “Thou shalt not discriminate against qualified individuals with disabilities”. It then says “Thou shalt provide reasonable accommodations for qualified individuals with disabilities” with respect to hiring and employment practices. Many employers, even some with the best intentions, get tripped up in the second part. How? The EEOC –and the courts–say you must engage in the interactive process to determine if a reasonable accommodation is even available. What is that and how can it be so easy to mess up? We’re going to look at that–and common mistakes employers make, so read on…
(image from care2.com)
The interactive process is the ongoing dialogue between the employer and employee regarding a request for a reasonable accommodation. You discuss the request, you discuss how the employee’s condition limits his/her performance of essential job functions and then you brainstorm. While you should consider the employee’s request, can also discuss alternatives. You can offer a different accommodation than the employee requests, as long as it’s at least as effective in addressing the issue. You continue the interactive process until you either come up with an accommodation that both you and the employee feel is appropriate or until you determine that in fact there is no reasonable accommodation you can provide — and you document everything (more on that in a bit). That’s, in a nutshell what you do. Here are some common mistakes to avoid — in other words, what NOT to do:
- Failing to start or resisting the interactive process: Most employees are not going to say “Hey, I’m requesting a reasonable accommodation under the ADA”. Often the employee will ask for some modification to their schedule, their work environment or some policy, and they may actually be asking you to accommodate a disability. You might need to find out why they are looking for the modification in order to know that you are dealing with a reasonable accommodation request. Saying “No” cuts off the interactive process before it can even begin and may put you at risk for an ADA failure to accommodate claim. A manager approached by an employee that s/he finds difficult and that s/he doesn’t really want to deal with might also get irritated and blow off the employee. Bottom line: If an employee asks for help with something that could be a disability, you need to err on the side of caution and start that dialogue.
- Giving up on the interactive process too soon: In this scenario, you have engaged in the interactive process, but you may not have put in enough effort. Many employers will discuss the request, and the reasons for the request, but tell the employee it’s not possible, or offer an alternative that is not really effective and then assume there is nothing more to be done. Again, you need to explore any possible alternatives and evaluate their effectiveness, and then choose. Once it is clear that you really tried everything, you need to document what options you considered, what you ended up doing and why. If you could not find an accommodation, document that and why too. Remember that someone else (attorneys, jurors, judges, state or federal agency investigators) may be looking at your documentation and what you did or didn’t do. If you can’t show that you did explore accommodation options, and the employee files a charge or a lawsuit, you’d better fasten your seatbelt, ’cause it will be a bumpy ride.
- Asking for or disclosing too much information: When considering or implementing a reasonable accommodation request, many employers make the mistake of asking for the diagnosis and all the why’s and wherefore’s. The only information an employer needs to know is that: a) the employee has a disability; b) s/he needs an accommodation; and c) the requested or contemplated accommodation is reasonable and effective. The more information you know about someone’s disability, the more vulnerable you are to allegations that you based disciplinary, hiring, compensation or promotion decisions on the disability, rather than performance or conduct. Similarly, telling co-workers too much about why someone is receiving a certain accommodation is also a no-no.
- Not training managers (and not having a designated person to handle accommodation issues): Managers should not be handling accommodation requests. That is the function of H.R. If you don’t have an H.R. Department, then designate someone who is not the employee’s direct manager to handle the process. Why then do managers need training? They need to know enough to know when to refer a matter to H.R. (or the office manager or whoever the Go-To Person is). Maybe there’s a performance issue. Maybe the manager writes up the employee and then hears that “I’m really having trouble getting motivated”. Is the employee suffering from a mental health issue? Is a reasonable accommodation necessary? It’s too soon to know, but at that point the manager should turn things over to H.R. (or another person designated to deal with such issues).
- No documentation: As I mentioned above, once you get a request, documenting it. Then document every communication, all options explored, everything you did throughout the process, what you ended up doing (or not doing) and, most importantly, why. If you end up defending a discrimination/failure to accommodate charge or lawsuit, your documentation can save you. Conversely not having it could sink your case.
OK, I think I’ve made my point, so I’ll stop here for now. Toodle loo!
Contents of this post are for educational/informational purposes only, are not legal advice, and do not create an attorney-client relationship. Consult with competent employment counsel in the state(s) in which you employ people with your specific questions.
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