Crystal Spraggins, SPHR
So, first things first. I’m not an attorney (although I will be quoting one).
However, during my many years in the HR business, I’ve read lots of cases about the Americans with Disabilities Act (ADA). In almost all the cases I’ve come across, the employer made one completely avoidable mistake that landed him in court.
But before I tell you what that mistake was, here’s a brief summary of the law.
The Americans with Disabilities Act prohibits employers from discriminating against employees or applicants on the basis of disability (or perceived disability) and mandates that employers provide reasonable accommodation (upon request) if said accommodation would enable an individual to complete the application process or perform the essential functions of the job. Employers are not required to provide an accommodation that would be an undue hardship, and employers don’t have to provide the exact accommodation an employee requests. Employers must, however, consider the request.
And this is where most employers who get in trouble, get in trouble. They simply don’t consider the request.
“Consider the request” does not mean running it through your head quickly and then saying “Bah! I don’t want to be bothered with that! So and so is a pain and always asking for something.” Just so you know.
Instead, once approached, an employer is obligated to enter into what’s called the “interactive process,” which could also be likened to a productive conversation (a totally non-legal term that I just made up) to determine what reasonable measure the employer might be able to affect.
Attorney Lorene Schaefer, who’s also the President and Cofounder of the Workplace Investigations Group, the workplace investigations division at One Mediation, says it all in the title of a recent blog posting: “Yes, the Mandatory ADA Interactive Process Means Employers Have to Actually Discuss Potential Accommodations with Employees.”
Keep in mind that what’s reasonable for one employer won’t be reasonable for another and vice versa depending on employer resources. Also keep in mind that the request need not be reasonable for the employer to still be at fault for not discussing it. In other words, even if the request is kind of nuts (or seems kind of nuts), the employer is still obliged to consider it, and if an employer is sued and can’t prove she considered it, well, she’ll be in trouble.
Here’s what Schaefer has to say:
“Talk to your employees when they ask for an accommodation. Document that you have discussed their request with them. Document your decision making process.
You don’t have to agree to a request for accommodation unless its reasonable, but you do need to discuss it. Perhaps as importantly, you should be prepared to demonstrate to the EEOC and to a plaintiff’s attorney if necessary that you discussed it.”
I’d add—talk to your HR rep, please. Unless you’ve been reading about this stuff for years, it’s easy to make a mistake without even realizing it. Refusing to properly consider a request for reasonable accommodation is one thing. Summarily dismissing a request for reasonable accommodation without even realizing it was an ADA request is even worse. (Well, maybe not legally. But it seems worse, somehow.)
Finally, don’t forget that reasonable accommodations come in all forms. An altered schedule could be considered a reasonable accommodation, as might time off, or a job duty modification. Also, the courts have been clear that an undue hardship is not the same thing as a mere inconvenience. And I don’t care how annoying that employee is—she’s still due the full protection of the law.
So let’s recap.
Assuming your employee (or the applicant) is covered under the ADA, when you’re approached with a request for reasonable accommodation you should:
- begin the interactive process (seeking counsel from your HR rep or attorney if appropriate)
- document the conversation and your decision-making process
- promptly communicate your decision and the reason for it to your employee (or applicant)
Okay, fine, I lied a little. Following these steps is no guarantee you won’t land in court. But, do these things, and it’s much more likely that if you do land in court you’ll be in a better position to defend yourself.