An employee tells his supervisor that he wants to leave early because, “The lighting in here combined with my vision issues is really giving me a headache.” The supervisor says, “Okay, you can go.” Said and done, right? (Can't write an article if this is true, so let's look more closely.)
The employee’s statement might be enough to trigger an inquiry as to the need for Reasonable Accommodation. The employee complained of a problem at work (lighting) that is negatively affecting his disability (vision problems). The supervisor should not take a wait-and-see approach on whether the problem arises again, but instead, act proactively. I have seen too many cases where the employee says I constantly complained to my employer but he didn't do anything, and the employer's attorney says ah hah - there is your notice to the employer.
There may be accommodation available to help the employee do their job affectively such as changing the lighting. When a supervisor is appropriately sensitized to such subtle requests, she can help the company avoid a claim for failure to accommodate and a possible workplace injury.
Having a clearly stated written policy on Reasonable Accommodation in the employee handbook is a simple matter of cut and paste. Most conflicts arise out of a failure to implement the policy effectively.
Reasonable Accommodation policies can’t be implemented unless there are people who know what they mean, how to use them, and when to use them. Simply, without thorough training, the policy is useless.
Training should be ongoing, targeted to anyone who might need it, updated regularly, and most of all, interactive.
Annual training is a must and should include what came up in the past year. And don’t forget about training new hires, or employees who are temporarily assuming a position where Reasonable Accommodation might come into play.
One frequent area of oversight is when there is a crossover from Worker’s Compensation. The employee is out on Worker’s Compensation leave but wants to come back to work. The person in charge of the leaves of absence needs to understand when the ADA Reasonable Accommodation policy may be coming into play (as when, for instance, an employee wants to return to work with a reduced schedule or light duty), before the employee is considered “permanent and stationary” in the Worker’s Compensation action. Telling the employee they can't come back to work until they can perform at full capacity is often a violation of the ADA.
Like the example I started with, lawsuits result from a failure to recognize when the Reasonable Accommodation policy might need to be implemented. This is usually because the supervisor or HR was told about the policy but was not given interactive training with the policy. Such interactive training will include role-playing and exploring various scenarios involving various types of disabilities.
Supervisors are most commonly on the front line when it comes to getting requests for Reasonable Accommodation. They come in unusual forms - this may be because often employees don't recognize they need one. Nevertheless, even an offhanded remark might be sufficient to put the employer on notice of the need for accommodation. The protections of the Americans with Disabilities Act are far reaching and extend to anyone who has a physical or mental impairment that affects their activities of daily living. Yet many employees are not even aware that they have a disability, let alone that they are entitled to accommodation, if necessary, to effectively do their job. In contrast, employers have superior knowledge, training, and expertise when it comes to Reasonable Accommodation especially, since they are regularly confronted with disability related requests.
Closing the loop. The interactive process is dynamic and never the same. Every encounter with an employee seeking Reasonable Accommodation is a knowledge building experience. An employee may be confronting their own disability for the first time and/or they may not be used to advocating for themselves. They may not know what they need to do the job effectively. They may be worried about asking for too much and being told no. Or they may worry about asking for too little and therefore risk failing. They may not know what they can ask for. They may not know how to ask. They may not know whether what they need is temporary or long-term. They may feel that the employer is needlessly intruding on their privacy by asking for more information, or that they are putting their doctor-patient relationship at risk by asking the doctor to do too much paperwork to satisfy the employer.
Every one of these situations can lead to a breakdown of the interactive process resulting in a lawsuit. Learning from each experience and adding to one’s knowledge base is the surest way to avoid unnecessary litigation and to provide a satisfactory outcome for all parties.
David Geffen is an expert consultant on Reasonable Accommodation issues in Employment and Housing, practicing throughout California.