Both the federal Americans with Disabilities Act and the California Fair Employment and Housing Act require employers to provide an employee with a disability a reasonable accommodation. This means a modification or adjustment to the workplace that enables the employee to perform the essential functions of the job (see my prior blogs on Job Descriptions for more information on essential functions). Finding a reasonable accommodation can be difficult process. However; there are some guidelines to follow to ensure you are doing your best to find a reasonable accommodation. Remember, according to the ADA and FEHA, the employer must provide an effective and necessary accommodation, unless doing so would be an undue hardship, that is, extremely difficult and costly.
The Duty to Engage in the Interactive Process
As an employer you have a duty to engage in an interactive process with an employee requesting an accommodation. The duty to engage in the interactive process and the duty to provide a reasonable accommodation are separate. The purpose of the interactive process is to determine what reasonable accommodation the employee needs. Once the employee and employer have established this, the employer must provide the accommodation. The employee does not have an ongoing duty to keep communicating with the employer. In other words, the employer and employee share an obligation to find an accommodation. But once they do, the employer has the obligation to implement it.
The Duty to Provide a Reasonable Accommodation
A recent Court of Appeal decision took a rigid approach to reasonable accommodation, specifically stating that a single failure to make reasonable accommodation can have tragic consequences. So, even a single error may be sufficient to sustain a jury award. Here are some guidelines that may help in the prevention of ADA claims:
- Involve the right people in the interactive process
- Have a clearly written process as to how the interactive process works; including which members of management should conduct these discussions.
- Make sure that the managers engaging in the interactive process are specifically trained and knowledgeable about the process.
- Ensure those who need to know about the accommodation do
If the employee needing the accommodation could be supervised by several different people, make sure they all know about the agreed upon accommodation. At the same time, providing information about a needed accommodation does not mean releasing private medical information, or telling people who do not need to know. Additionally, supervisors must be trained to keep confidential information about accommodations and to prevent discrimination and retaliation against employees with disabilities. Establish open communication: Employers also can improve open communication with simple steps like periodically checking in with the affected employee to ensure an accommodation is working and reiterating the organization's commitment to a long-term, sustainable solution. You might want to establish a designated person or persons to call in case the employee is not given the accommodation. This simple step might prevent innocent errors turning into litigation. Make sure the accommodation makes sense: An accommodation needs to meet legal standards, but it must also be practical. As the employer, you need not provide the employee's choice of accommodation. Ask for input: Set up a process in your policies, meetings, and follow up communications where you solicit regular feedback and input and remind employees that you expect them to speak up right away if an accommodation is not working. Immediately address inadvertent errors: Employers may be able to avoid lawsuits by addressing inadvertent wrongs as soon as they happen.
By adopting and carefully and consistently following a few important guidelines, an employer may be able to avoid painful litigation when it is time to provide and maintain a reasonable accommodation.
Human Resources 4U specializes in helping companies develop effective Human Resource ADA processes and procedures. Human Resources 4U is a full service Human Resources consulting company specializing in small and midsize businesses. Note: This article is presented with the understanding that we are not engaged in rendering legal advice. If legal advice is required, the services of a competent attorney should be sought.