Not long ago, an employee who had been on medical leave for nearly six months reported that his restrictions were now “permanent.” The company terminated the employee because, given the restrictions, he could not perform the essential functions of his job. The employee sued the company, claiming it had violated the ADA by failing to reasonably accommodate his condition. In the lawsuit, the employee's lawyer asked the company to answer the following question:

Please describe all efforts made to accommodate Plaintiff's medical condition before discharging him.

This question is asked in every ADA lawsuit, and the job of the HR manager is to make sure there is a lot to talk about when it is time to answer this question. By illustration, here are two possible answers:

Answer One

We compared the restrictions to the essential functions of the job, and decided Mr. Smith could not perform some of those functions. For that reason, we had no choice but to terminate him.

Answer Two

The company took the following steps.

  • We compared the restrictions to the essential functions of the job and determined there were several functions that Mr. Smith could not perform, including the following specific functions ….
  • We discussed those functions with a group of internal and external experts (including the Job Accommodation Network (http://askjan.org/soar/index.htm)) to determine if there was some technical assistance we could provide that would help Mr. Smith perform the functions. We could not come up with a solution.
  • Next, we looked at all the other open positions in the facility, both hourly and salaried, to see if Mr. Smith could perform any of those jobs. He had the qualifications to perform three of the jobs, but again, given his restrictions, he could not perform the essential functions of the jobs.
  • We went through the same process with our internal and external experts, covering each of those jobs, but as with Mr. Smith's original job, we could not find a solution that would let him perform the jobs.
  • At that point, we wanted to avoid terminating Mr. Smith, so we put him on leave for six more months, and we asked him to let us know right away if there were any changes in his situation.
  • In addition, we kept an eye out for any positions that became available during that six-month period that might have been within Mr. Smith's qualifications. Unfortunately, no such positions became available.
  • Still wanting to avoid termination, at the end of the six-month period, we called Mr. Smith and asked if there had been any change in his condition, or if he could think of any possibilities that we had not tried. Neither he nor the company could come up with any alternatives.
  • It was only after we took all these steps that we reached the point of termination.

The answers provided above are meant to illustrate possible accommodations and not requirements in every instance. Nevertheless, going through the process described in Answer Two makes it far more likely you will be able to find a solution that allows the employee to remain at work. Even if you cannot ultimately find a solution, the process described in Answer Two will give you a far better chance of successfully defending an ADA claim.