Top 10 employer mistakes in accommodating disabled employees

by Matthew A. Goodin

Even experienced HR professionals have a difficult time with requests for reasonable accommodation from disabled employees. This process is even trickier if the employee needs a leave of absence as an accommodation because of the intersection of different laws that govern leaves of absence. Below are some of the most common mistakes employers make when accommodating employees with disabilities. Recognizing and avoiding these mistakes will go a long way toward preventing unwanted litigation.    TOP 10. Rainbow splash paint

1. Not having adequate job descriptions

An accommodation must allow the employee to perform the “essential functions” of his job. In determining what accommodations are reasonable, the starting place is the essential functions of the employee’s position. While they are not dispositive, courts give job descriptions deference in determining the essential functions of the job. Your job descriptions should describe not only the specific duties and functions the employee will be expected to perform but also the percentage of time per day the employee is expected to perform each function.

2. Not having a uniform accommodation policy

Determining what accommodation to provide an employee with a disability requires an individualized analysis, but that doesn’t mean you should approach the accommodation process on an ad hoc basis. Everyone involved in the accommodation process should be guided by a centralized, uniform process.

You should have a written policy that describes each step of the accommodation process and the responsibilities of both you and the employee. With a written policy in place, employees know what to expect, and supervisors and HR professionals know what to do.

3. Making assumptions about a disability

Making assumptions about how a particular disability might affect an employee can get you in trouble in several ways. For example, although a past employee with a particular condition may not have needed any accommodation, you can’t assume another employee with the same condition won’t need one. Prejudging an employee to have certain limitations might also lead to a claim that you regarded her as disabled, rightly or wrongly. Keep in mind that the same condition can affect different people in different ways, with varying levels of severity. Rely on the employee or her physician to make the first request for the appropriate accommodation—don’t rely on your own assumptions or past experiences.

4. Not engaging in an interactive process

Too often an employee informs his employer that he has a specific condition, and the employer immediately and unilaterally determines the accommodation it will provide. Even when it is relatively clear what accommodation is appropriate, a dialogue with the employee about the process is still important.

If you have a specific accommodation in mind, inform the employee what you are considering and ask whether he thinks that accommodation will allow him to perform the essential functions of the job. Check in with the employee periodically to ensure that the accommodation is still working. The accommodation process is an ongoing one.

5. Not understanding ‘undue hardship’

Too often employers equate “undue hardship” with “we don’t want to do that.” Accommodating employees with disabilities can create a burden for employers. Other employees might have to take on additional work, or the employer might have to spend money it would rather spend elsewhere on new equipment. These things might be a hardship for the employer, but they aren’t necessarily an undue hardship.

When analyzing whether a particular accommodation is an undue hardship, courts will consider factors such as the nature and cost of the accommodation, the overall financial resources of the employer, the nature of the employer’s operations, and even the employer’s own past practices. What might be an undue hardship for a small employer may not be one for a large employer. And just because a particular accommodation has never been provided before doesn’t mean it’s unreasonable.

6. Not understanding overlap of leave laws

Many states have laws under which an employee may be entitled to a leave of absence.  For example, in California, the Americans with Disabilities Act (ADA) and the California Fair Employment and Housing Act (FEHA), the Family and Medical Leave Act (FMLA) and the California Family Rights Act (CFRA), the Pregnancy Disability Leave Act, and workers’ compensation laws each may require an employer to provide a leave of absence, but all have very different requirements.

Recognizing and understanding the requirements and differences in these laws is one of the more complex areas of employment law. A description of the many differences among these overlapping laws is beyond the scope of this article, but two pitfalls are very common: relying on a third-party workers’ comp claim administrator to make decisions about your obligations under the ADA or the FMLA and over lapping state laws and failing to recognize that employees can be entitled to time off under the ADA beyond what is required by the FMLA and overlapping state laws.

7. Failing to train supervisors

Having a great HR team means little if supervisors err in making accommodation decisions on their own. Employees with a medical restriction often first present a doctor’s note to their supervisor. Unless properly trained, the supervisor might make the wrong decision about whether to provide an accommodation. Supervisors may not be aware of what accommodations have been made for other employees with similar conditions and shouldn’t be expected to understand the intricacies of an employer’s obligations to accommodate employees with disabilities.

Make sure your supervisors are trained to recognize when the interactive process might be required even if an employee hasn’t made a specific request for an accommodation, and make sure they bring accommodation requests to the attention of HR. Also ensure your job interviewers are trained on which inquiries in the hiring process aren’t allowed under the ADA.

8. Requesting too much information

The ADA greatly restricts the amount of information you can request to support an employee’s claim of disability or request for a reasonable accommodation. It’s very tempting to ask for medical “proof” that the employee has a specific condition. However, even when the need for an accommodation isn’t obvious, you are entitled only to information sufficient to substantiate the need for an accommodation and to describe the nature, severity, and expected duration of the impairment. You can’t ask for more or seek a medical examination.

9. Not respecting confidentiality

Most experienced HR professionals are aware of the obligation to keep employee medical information confidential. Employee medical information should be kept in a secure file separate from the employee’s personnel file. But violating an employee’s medical confidentiality may occur in other ways. Employees may perceive that a coworker who has been given an accommodation for a disability is getting “special treatment.” Be careful how you explain the need for this treatment to other employees; do so in a way that doesn’t disclose any confidential medical information.

10. Failing to document

It’s critical that you document every step of the interactive and accommodation processes and the reasons for each decision made along the way. If you are going to claim a requested accommodation is an undue hardship, be sure to document all the reasons for that conclusion, including factual support from supervisors or others with a good understanding of the specific concerns. If an employee on leave has failed to keep you apprised of her current status or expected return to work, document all attempts to reach her. Even if you do everything correctly, it might not matter much if you can’t prove it in the event of litigation.

Bottom line

Few areas of employment law trip up employers more often than disability and related leave laws. You need clear policies and consistent practices, but you also need to keep in mind that situations must be handled on a case-by-case basis.

 Matthew A. Goodin is an attorney with Epstein Becker & Green, P.C., in San Francisco. He may be contacted at mgoodin@ebglaw.com.

 

 

 

Need to learn more? Join us at AEIS 2017: Advanced Employment Issues Symposium where Employers Counsel Network attorneys Stacie Caraway, Esq. of Miller & Martin PLLC and Susan Fentin, Esq. of Skoler, Abbott & Presser, P.C. will present Absence Management in the Compliance ‘Bermuda Triangle’: FMLA’s Intersection with Disability Accommodation, Workers’ Compensation, and Paid Time Off. This session will provide a comprehensive look into how to conquer the most confusing leave-related conundrums under leave-protection laws. You’ll get legal insight into the leave and benefit traps that employers of all sizes need to avoid so you can develop sound administrative procedures that withstand scrutiny if called into question by regulators, a judge, or a jury. For more information, click here.

 

 

 

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1 COMMENTS

1 Anthony Tyler
09:44:01, 18/09/17

Excellent article. If your takes the time to establish a ADA accommodation process which includes providing medical certification forms, accurate jhob descriptions, interactive discussion process and training of supervisors the problems associated with ADA accommoations can be reduced.

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