Reasonable accommodations are a pain and are subject to abuse, says Attorney Lawrence Postol, but litigation over the failure to provide accommodations, with a trial by jury, is a bigger pain and subject to greater abuse.
Postol, who is a partner in the Washington, D.C., office of Seyfarth Shaw, LLP, offered his Americans with Disabilities Act (ADA) tips at SHRM’s Employment Law and Legislative Conference, held recently in Washington, D.C.
What Defenses Are Left
Employers still have some cards to play in the ADA game. Postol suggests employers take note of the following:
1. Employer Still Determines Essential Duties
The employer still gets to determine the essential duties of the job, says Postol. Accurate written job descriptions with minimum qualification requirements can be very helpful, he adds.
For example, if the job description says that a hotel worker is to clean 8 beds a day (and if that is accurate—that is, the other workers do that) then that is the standard. It’s OK to request a light vacuum as an accommodation, but not seven beds instead of eight, says Postol.
Make sure to compare job descriptions to the work the current workforce does—you can be sure the employee’s lawyer will do that, Postol warns.
2. Regular Attendance at Work Is Required
Document the need for face-to-face interaction with supervisor, coworkers, and customers.
Since no good deed goes unpunished, be careful in allowing telecommuting on a temporary basis. Short-term accommodation does not mean the same thing is required in the long term, but it is risky. Make it clear that someone can cover for a few weeks, but not forever.
Find problems before the feds do. HR Audit Checklists ensures that you have a chance to fix problems before government agents or employees’ attorneys get a chance. Try the program at no cost or risk.
3. You Are Not Required to Change Essential Functions
Reasonable accommodation rules do not require the employer to change the essential functions of the job; only nonessential duties must be reassigned. In addition:
- Employers need not create jobs.
- It is also permissible for an employer to reserve light-duty jobs for those with work-related disabilities.
4. Employer Need Not Violate a Collective Bargaining Agreement
The ADA does not require employers to violate a collective bargaining agreement (e.g., seniority clause) to accommodate. But a disabled worker who meets minimum qualifications for a job may have to be hired for a vacant job over a more qualified applicant. (Some courts have ruled this way; some have not. Check with your attorney.)
5. Safety Still Counts
A direct threat, that is, a significant risk to health and safety of self or others still counts. In making this determination, the employer must rely on a medical opinion that is based on the current state of medical science, and the worker’s doctor can challenge (and will challenge) that opinion.
Write to the physician requesting certification following ADA language, says Postol. Ask the physician to certify that there is no substantial risk of harm OR no significant risk for substantial harm.
This tends to switch the doctor from patient mode to malpractice mode, says Postol.
Using the “hope” system to avoid lawsuits? (As in: We “hope” we’re doing it right.) Be sure! Check out every facet of your HR program with BLR’s unique checklist-based audit program. Click here to try HR Audit Checklists on us for 30 days!
6. The Employee Must Cooperate with the Interactive Process
Employee must answer questions, give requested medical information, and attend the independent medical evaluation. Also, the employee must sign a release of medical records to go to the independent medical evaluator.
7. Employers Can Enforce Work Rules
If the employer honestly believed there was a violation of a work rule, which is a defense, even if hindsight proves the employer was mistaken, and maybe even if a disability caused the violation.
In tomorrow’s Advisor, we present Postol’s take on “undue hardship”—good luck with that—and an introduction to a unique audit guide that helps you find problems before the feds do.