Let’s set the stage for this “how to” post with a newly-filed lawsuit.
A Georgia for-profit thrift store was just sued by the EEOC, which alleged that an employee with COPD and emphysema asked to be allowed to wear an oxygen backpack to treat her symptoms. Fairly simple request. However, the company’s management denied her repeated requests.
Her symptoms got worse and she asked to transfer to a less strenuous position (she was a “stocker”). Her request was denied.
She resigned after being hospitalized, and claimed that the denial of her request for an accommodation had “compromised her health.”
The EEOC sued.
Question: What did the company allegedly do wrong – or not do? What should it have done? What is the “best practice?”
An Employer Must Make A Reasonable Accommodation
I have written umpteen times that it isn’t all that difficult (and usually not particularly expensive) to arrive at a “reasonable accommodation” for an employee with a disability – at least compared to the cost of litigation. So what does a “reasonable accommodation” mean, and what does it entail?
My partner and co-blogger Amy wrote a great post on accommodation which I want to quote at length – and which you should read carefully:
“The Americans with Disabilities Act (ADA) requires employers (with more than 15 employees) to provide a reasonable accommodation to a qualified employee with a “disability” within the meaning of the ADA (it’s a broadly interpreted term) that substantially limits one or more major life activity(ies) or has a record of a disability. … [E]mployers should note that the ADA only protects employees who are “qualified”, i.e., possessing the skill, experience, and education to do the job and able to perform the essential functions of a position with or without any reasonable accommodation.
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.”
An Employer Must Engage In An Interactive Process
Amy also wrote that “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. Engaging in the interactive process is an ongoing duty. I cannot emphasize that enough.”
Two Great Takeaways To Put On Your Refrigerator – or your HR bulletin board!
To help employers out with these significant issues, I quote in full below the takeaways from both Amy’s post, and the recent guest post of our partner Gary Lawson entitled “How Not to Handle an ADA Accommodation Request.” They are worth saving!!
Determine whether or not an employee requires an accommodation. Actually talk to the employee about this, i.e., engage in an “interactive discussion.” Determine what your employee needs and what you, as the employer, can provide without undue hardship to your business.
Once you’ve had this sit-down with your employee and the employee agrees that (she 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 JAN Network, or consult with an employment attorney (I am available (I don’t just write blog posts), as are my excellent employment law partners at FisherBroyles.
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.
- Before you get an ADA request for accommodation, make sure you have in place policies and procedures as to how you are going to deal with an employee who presents with a disability and a request for an accommodation. Your HR Department, supervisors, and/or senior officers should know not to make damaging statements of policy or opinion that run contrary to the law, like “Nobody here is going to work from home, or take a lay down nap break on the job.”
- Be sure that your job descriptions contain up-to-date descriptions of the “essential functions” of the job. What’s an essential function? Does the position exist to do this job? For example, a horse trainer must be able to around horses- or a fireman around smoke, you can’t be highly allergic to horses or smoke and perform the essential function of those two jobs. A few other examples: must a person be able to climb stairs for the job or carry a certain amount of weight (a firemen), not be visually impaired to the point of being blind (a truck driver), speak (a trial lawyer). This means periodically reviewing all your job descriptions. And it probably means that as part of the process of evaluating the accommodation request, you must review the description for the particular job of the person who’s made the request or who needs the reasonable accommodation to be sure it’s still valid.
Then, when an employee asks for help with, say, a medical problem, talk with that employee and find out about the nature of the problem. If you discover that your employee has a disability but can still perform the essential functions of her/his job, and wants help figuring out how to keep the job, this is where you continue to engage in an interactive process, discussing the nature of the disability and what you might do to provide a reasonable accommodation.”
Now you know what a reasonable accommodation is and what an interactive process is.
Was that so painful??