8/12/24
By: Ryan Giggi
Attention employers! Has one of your employees recently requested an accommodation for a claimed disability? You are obligated to engage your employee in a good-faith interactive process in an attempt to reasonably accommodate that employee’s disability.
Though this task is undoubtedly daunting, here are five (5) best practices to guide you through your duties as an employer in this situation:
(1) Know the Contours of the Employee’s Position. The first step should be gaining a good handle on the employee’s particular responsibilities. Reasonable accommodations should be closely tailored to the employee’s claimed disability and the position they hold. Before engaging the employee in an interactive dialogue, take some time to get a firm grasp of the employee and their day-to-day and week-to-week responsibilities. It will be far easier to identify any reasonable accommodations with a strong understanding of the position to be accommodated.
(2) Listen. The law requires that the process with your employee be interactive and in good faith. This involves listening to the employee and whatever physician or medical records they may present concerning their claimed disability. A good place to start the conversation is to allow the employee to be heard and to state what they feel they need. This does not require the employee to come up with a specific idea for an accommodation, but does provide the employer with information on what the employee believes will make them successful. And remember, the employee triggers this duty by disclosing the disability. The employer does not have an obligation to anticipate and accommodate disabilities it does not know about, but should be on the lookout for employees disclosing disabilities in more informal ways – such as in casual conversation with a supervisor rather than in a formal writing – and be prepared to respond in kind.
(3) Ask the Right Questions. All this said, finding a reasonable accommodation takes both the employee and the employer, and the employer is entitled to gather certain information to make informed decisions. This is not an opportunity to dig into the employee’s entire medical history, nor is this the right time to address performance issues not cognizably to be accommodated through this process. That said, the employer can ask questions relevant to the disability the employee is claiming to fully understand the contours of the claimed disability. In most circumstances, this can involve requesting information, including from a physician, to verify the disability the employee claims. Note that the Americans with Disabilities act defines an individual with a disability as one who (i) has a physical or mental impairment, (ii) who is perceived by others as having such an impairment, or (iii) has a history or record of having such an impairment that substantially limits one or more major life activities.
(4) Be Reasonable. This is the crux of the matter. The employer’s obligation to accommodate an employee’s claimed disability is not absolute. Reasonable accommodations do not fundamentally change or eliminate essential functions of a position, nor do they cause undue hardships upon the employer or the accommodated employee’s coworkers. Likewise, an employer is not obligated to reassign or create a new position for an employee requesting a reasonable accommodation if no reasonable accommodation exists for that particular employee in their position. Consider, within the context of your workplace and the employee’s position, what would be reasonable and directly address the employee’s claimed disability. And note that what is reasonable in one circumstance may not be reasonable in another, as no two of these situations is exactly alike. For example, opportunities to sit every hour, or a workspace near an entrance, or increased breaks may be appropriate and reasonable for one employee holding one position, but not for another.
(5) Document! Finally, be sure to document all steps of this process. This includes taking good notes of all meetings, filing away all correspondence with your employee and any representative they may involve in the process, keeping all medical notes or records the employee may have presented, and recording in writing the precise contours of any accommodation reached, including the date the accommodation becomes effective. Keeping a complete and precise record of the whole process will both improve your processes, help verify that you undertake the same process with each employee, and provide a layer of protection if the process should fail and result in litigation.
There is no single formula to guarantee success, but these five best practices should provide at least a good starting point for any employer in engaging with an employee in a good faith interactive process to accommodate a claimed disability. Please do not hesitate to reach out to Ryan Giggi at ryan.giggi@fmglaw.com or your local FMG attorney with any questions, including concerning any nuances particular to your state.
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