If you have an employee that needs accommodations due to a disability, do you know what to do? Let’s consider a scenario. You just hired Alex, and on his first day, Alex tells you he has diabetes and will need a place to store insulin and snacks, and take regular breaks to test his blood sugar, eat a snack, or take medications. Can you fire him for not disclosing this information prior to hiring him? No!
In this situation, you must initiate the interactive process. The interactive process describes the two-way, formal conversation between an employer and their employee with the goal of working together to come up with a reasonable accommodation. The Americans with Disabilities Act (ADA) requires an employer with 15 or more employees to provide a reasonable accommodation to an employee with a disability if needed, and many states and municipalities will have their own version of the ADA that may cover employers with less than 15 employees.
What Should I Discuss During the Interactive Process?
Prior to meeting with the employee, you should familiarize yourself with the job description and pay close attention to the essential functions and physical duties of the position in which the employee is in. You should also review the employee’s personnel file and any other similar issues your company has addressed with other employees in the past. During the meeting, you should ask the employee to describe their limitations in regard to the essential functions, how long these limitations may last (if temporary), if they foresee any barriers in performing the essential functions, and what type of accommodations they would want considered. Don’t forget to document the conversation for your files. To assist with this documentation, you can request that employees complete a reasonable accommodation request form.
Keep in mind that “reasonable accommodation” is not a magic word you have to wait for the employee to say to begin the interactive process. If you notice the employee is having performance or attendance issues you should review the situation very carefully and consider beginning the interactive process to ensure your employee has all the tools possible to be successful. Additionally, if the employee mentions some limitations or seems to be struggling in any way that may be due to a disability, you should initiate the conversation. Terminating or otherwise disciplining an employee knowing they have a health issue without completing the interactive process poses significant risk to your company and leaves you open to EEOC claims for violating the ADA.
What is a Reasonable Accommodation?
A reasonable accommodation is a modification or adjustment to a job, the work environment, or the way things are usually done during the hiring process. A reasonable accommodation ensures equal opportunity in the application process, enables qualified individuals with a disability to perform the essential functions of the job, and makes it possible for employees with disabilities to enjoy equal benefits of employment.
What is considered reasonable will depend on many factors, such as the essential functions of the job and the company itself. For example, a company with 500+ employees will more than likely have the capital to install a motorized lift needed for someone with mobility issues, but it may not be financially feasible for a company with 15 employees. If the accommodation is something that would put an undue hardship on the company, it is not considered reasonable according to the EEOC’s definition. You also would not be expected to remove essential functions from a job or permit someone to perform a job if it would pose a safety risk to themselves or others.
Can I Ask for Proof of Disability?
Unless the disability is obvious to the employer, such as an individual walking with a white cane commonly used by people with visual impairments, employers can request employees provide documentation from their medical provider to support the need for an accommodation. In this documentation, you should not require that the medical provider disclose any diagnoses or conditions of the employee but only what the employee’s limitations are.
Additionally, you should refrain from asking the employee what their disability is and only focus on any limitations they may have to determine what accommodations to make. Many times, employees will disclose their diagnosis voluntarily but be cautious about prying further about the condition unless the question is related to determining the employee's limitations.
Who Gets to Pick the Accommodation?
While engaging in the interactive process, you may ask the employee about what accommodations they would like, or their medical provider may even include recommended accommodations in their documentation. However, the decision on what accommodation will be provided is ultimately the employer’s decision. Going back to our new employee, Alex, if he asked to work only two hours at a time with an hour break in between, you should look at the reasoning for this suggestion and determine if this is reasonable and, if not, consider if there are other options. Of course, you should still factor in what the employee requests and give particular weight to what the medical professional recommends; for example, you should not ignore a lifting restriction imposed by a doctor.
I Gave My Employee an Accommodation. Now What?
Once you have decided what reasonable accommodation to provide to your employee, make sure you communicate this to the employee and document it in writing for your files. Periodically evaluate to ensure the accommodation allows the employee to perform their job duties and, if there are still difficulties, revisit what other accommodations can be provided. You should also revisit regularly to see if the accommodation is still necessary or if the employee’s limitations have resolved or changed.
At times, there may not be a reasonable accommodation for a particular job. Employers are not required to remove an essential function of a job, risk the safety of the employee or others, or accommodate at the risk of causing undue hardship to the business. The final resort in this case would be to move the employee to another available position they are able to perform with or without reasonable accommodation or place them on an unpaid leave of absence. These measures should also be documented.
The interactive process and reasonable accommodations help employers not only ensure their employees have the tools necessary to perform their job and stay productive, but it also protects employers from disability-related discrimination claims. Clients of FrankCrum should reach out to their HR Consultant to help them through the process. Contact us today to learn more about how FrankCrum can help you.
