If an employee with a disability is reassigned to a vacant position that better accommodates the disability, but this position does not pay as well as the one they started in, can the employee’s pay be reduced? Can having a high school diploma or GED be a job requirement? What happens if a disabled employee refuses to accept any of the reasonable accommodations offered by the employer? During a recent BLR webinar, Jennifer Sandberg lent her expertise to answer these questions and more.
If an employee with a disability is reassigned to a vacant position that better accommodates the disability, but this position does not pay as well as the one they started in, can the employee's pay be reduced?
Can we list graduation from a specific school as a job requirement or as part of the job description? What about high school graduation?
What happens if a disabled employee refuses to accept any of the reasonable accommodations offered by the employer?
These are all great questions, and ones that employers struggle with every day. During a recent BLR webinar, Jennifer Sandberg lent her expertise to answer these questions and more. Read on for her answers.
Q. If an employee with a disability is reassigned to a vacant position that better accommodates the disability, but this position does not pay as well as the one they started in, can the employee's pay be reduced?
A. Yes, actually. It's a tough employee management issue, but it is legal. The pay does not have to be the same. Many employers would leave it the same, but this can also present problems.
Q. One of our hiring managers has a strong preference for candidates who have graduated from specific schools. Can we list this as a job requirement or part of the job description?
A. It depends on the reason for the preference. For example, if there is a very specific program that uniquely qualifies a candidate to perform the job, then having a preference for graduates of that unique program might make sense. However, if a hiring manager is just showing a preference for specific schools for personal reasons or bias, it's hardly a job qualification. While we can come up with very special circumstances where this might be okay, the way the question was phrased indicates it's simply manager preference—which is hardly a qualification standard.
Q. What about requiring a high school diploma or GED? Is that allowed?
A. If it's a real qualification standard, then go ahead. The two should be interchangeable. If a high school diploma is a bona fide requirement, then you should accept a GED in its place. That said, whether or not someone needs a high school diploma depends on the particular job. If you deny someone a job because of this type of qualification, and it's not really necessary, you could face a discrimination lawsuit. You could create a situation of disparate impact.
Q. What happens if a disabled employee refuses to accept any of the reasonable accommodations offered by the employer?
A. As an employer, if you've come up with reasonable accommodations that are acceptable to you but not to the employee, there's nothing else you can do to require them to take those options. That said, you should certainly be doing a lot of documenting of every bit of this process.
Build a paper trail. Continue the interactive process to see if there are other acceptable accommodations you could offer, but you're not under obligation to provide the one the employee requests if there are others you have offered that would allow them to perform the job. If you feel you have no choice but to let the employee go, this is a high risk option and a good time to get your employment attorney involved. Consider using a leave of absence before termination.
Q. Can an employer require the ability to read and speak English as an essential function of a job if that ability is only required for safety?
A. Possibly. But you should consider the alternatives and question yourself about what are the potential safety issues. Are there other ways you can communicate a hazard, for example (i.e. an alarm instead of an announcement)? If yes, there could be alternatives to making this a requirement. That said, to fully answer this question would require a deeper assessment of the work environment to see if it would be an acceptable or valid criteria.
Q. Is there a reason to guard against going into too much detail when describing an essential job function in a job description?
A. You want your job description to be as broad as possible without being unclear or overly vague. What you're trying to balance is: you want your essential job functions to cover as much as you can without losing meaning. When you add detail, it runs the risk of leaving out something important. For example, if the ability to communicate well with others is important, say so. But if you say that the employee must be able to communicate well with coworkers and clients – but leave out the supervisor and vendors – that can be riskier. In general, if you can leave it broad without losing meaning, you're probably better off.
Q. Can you include GPA requirements in a job description? Is it okay to ask candidates for their GPA on the application or during an interview?
A. This item would probably fall under a –desired– qualification rather than a standard that must be met. Not only does the GPA scale now differ at some schools, even standardized tests like the SAT have updated their scoring system, such that scores today would not have been possible before the update. That could be problematic for comparison and could exclude candidates entirely if it is a firm standard.
Also, if you're using this as a standard for qualification, you'll need a very strong rationale as to why that particular GPA is truly required to do the job and how it is non-discriminatory. Assess the rationale behind this desire.
For more information on job descriptions, essential job functions, and how they both relate to the ADA, order the webinar recording of "ADA-Compliant Job Descriptions: Outlining Essential Functions to Avoid Disability Discrimination Entanglements." To register for a future webinar, visit http://store.blr.com/events/webinars.
Jennifer Sandberg is a partner in the Atlanta office of Fisher & Phillips LLP. She provides counsel regarding the Americans with Disabilities Act, wage and hour issues, the Family and Medical Leave Act, harassment, discrimination, garnishment, drug testing, and other federal and state laws and regulations affecting employment.