What’s not a good idea? Terminating an employee who requests a reasonable accommodation. Or failing to even discuss said accommodation.
One employer found this out the hard way.
Yesterday, the Equal Employment Opportunity Commission (EEOC), the federal agency that enforces the federal anti-discrimination laws including the Americans With Disabilities Act (ADA), announced a $125,000 settlement with Merritt Hospitality and HEI Hotels and Resorts after filing a federal lawsuit about one hotel’s working conditions and its deleterious effect on an employee.
The Complaint alleged that the employer assigned an employee at one of the San Diego hotels to a workspace that lacked any ventilation or windows. Those conditions aggravated said employee’s disability (which was unspecified and unclear) and caused her to suffer significant breathing issues.
The EEOC asserted that the employee immediately requested an accommodation for her disability, but the company failed to provide her with an effective one.
Then the employer committed the cardinal sin: instead of engaging in the interactive process with the employee, the company fired her.
No, no, a thousand times no!
Critical to compliance with the ADA, employers must engage in an “interactive process” with an employee who has a disability to determine what kind of reasonable accommodations it can provide.
What Constitutes a Reasonable Accommodation?
As I wrote here, a reasonable accommodation is a change in the way duties are performed to help a disabled employee perform his or her job duties or enjoy the benefits and privileges of employment. If a disabled employee requests a reasonable accommodation, an employer must provide it unless doing so would cause “undue hardship,” defined as significant difficulty or expense for the employer given its size, financial resources, and the needs of the business. An employer may not refuse to provide an accommodation just because it involves some cost, but in truth, most accommodations are free or less than $500.
What Else Can an Employer Do?
Along with the hefty settlement, Merritt Hospitality agreed to retain an EEO monitor to ensure future compliance with the ADA and other anti-discrimination laws; appoint an internal ADA coordinator; revise its written policies and procedures regarding compliance with the ADA; create and maintain an accommodation log; implement training to all employees on the ADA; develop a centralized tracking system for accommodation requests and discrimination complaints; and submit annual reports to the EEOC verifying compliance with the decree.
All good ideas! The EEOC considered that these were “meaningful measures” to prevent disability discrimination.
- Talk to your employees, i.e., engage in an “interactive discussion.” Determine what your employee needs and what you, as the employer, can provide without undue hardship.
- Once you’ve had this sit-down with your employee and the employee agrees that (s)he would benefit from certain reasonable accommodations, consider whether you need to request any functional limitations, caused by the disability, from an employee’s medical provider so as to understand the employee’s difficulties, how accommodations could alleviate an employee’s limitations, and which accommodations may be appropriate.
- A wide range of reasonable accommodations is likely to exist. Check the EEOC website, the Job Accommodation Network (JAN), or consult with an employment attorney (I am available—I don’t just write blog posts).
- Document any interactions with the employee, and remember that the ADA duty to engage in an interactive process to determine how best to accommodate an employee with a disability is an ongoing one.
- Check your handbook policies for inflexibility. Modification of a workplace policy may be a reasonable accommodation for a disabled employee.
“The interactive process is an integral part of the ADA and requests for accommodations must be taken seriously,” said Anna Park, regional attorney for the EEOC’s Los Angeles District Office, which includes San Diego.
Remember to engage in it.