“One of the key factors of the ADA is not only the non-discrimination component, but the requirement that an employer reasonably accommodate the individual with a disability – in this case, someone who has been diagnosed with cancer.” Jonathan R. Mook explained in a recent BLR webinar.
The duty to accommodate is a very broad one. Basically, you have the obligation to make reasonable accommodations to allow the disabled employee to perform the essential functions of the position.
The Key to Accommodation: Determining Essential Functions
The key to determining what accommodation might work is to determine what functions are essential. These activities are the ones that must be performed, and there is no obligation in the Americans with Disabilities Act (ADA) to alter or eliminate essential job functions (although an employer may do so if they would like).
The employer should know what functions are essential functions before there is a question of accommodation. Job descriptions should note which functions are essential.
“It’s going to be helpful when accommodation requests are made to you, to have thought through what the essential functions of each of the jobs that you have are. Don’t wait until an accommodation request comes in.” Mook confirmed. This is important because “even though you may need to make reasonable accommodations, you do not need to alter or eliminate the essential functions of the job. What you need to do is to provide an accommodation to enable an individual with a disability to perform those essential functions.”
The Interactive Process
The accommodation process doesn’t require any magic words. It can start when the employee makes it known that he needs changes at work because of cancer. When the employer knows or has reason to know that employee has workplace problems because of a disability, that triggers the obligation to initiate the interactive process.
When discussing potential accommodations, the employer is not under an obligation to do what the employee wants, only to provide a reasonable accommodation that allows the employee to perform the essential job functions.
If the employer disagrees with the requested accommodation, however, there is still the obligation to continue to have the interactive discussion with the employee to see if another accommodation would work. If more than one accommodation would be effective and otherwise equal, give the employee’s preference primary consideration.
Cancer as a Disability: What is a Reasonable Accommodation?
An accommodation is reasonable unless it causes an undue hardship on the employer. (An undue hardship would occur if the accommodation would result in significant difficulty or expense, but this is a high standard to meet). If faced with a potential accommodation that might be unreasonable, there is first a duty to see whether there is a less costly accommodation option. Here are some potential accommodations that could come up for an employee with cancer:
- Modifications to where or when the work is performed. This might include reduced hours or a change in hours, rest periods, working at home (including providing equipment to allow this).
- Modification to how work is performed. This might include reassigning nonessential functions of the position to someone else, reassigning the individual to a vacant position (watch for FMLA issues if you take this route), or creating a temporary light-duty position (this is not required, but could work).
- Small changes to the workplace. This might include providing space in the office to rest during the day, allowing the use of private space for calls to/from the doctor, modifying the office temperature, or providing a chair or stool to help with fatigue.
- Leave as an accommodation. While there is no requirement to provide paid leave, look at your general policies on leave. Beware of policies that prohibit leaves of more than a specified duration, as this may be problematic in complying with the ADA. That said, employers are not required to provide indefinite leave—but they cannot deny leave simply because the employee cannot provide an exact return date.
For more information on the interactive process to accommodations for employees with cancer, order the webinar recording of “Employees with Cancer: Commonsense Answers for ADA, FMLA, and Privacy Compliance.” To register for a future webinar, visit http://store.blr.com/events/webinars.
Jonathan R. Mook is a founding partner in the firm of DiMuroGinsberg and is a nationally recognized authority on the Americans with Disabilities Act. He has authored two published treatises: “Americans with Disabilities Act: Employee Rights and Employer Obligations” and “Americans with Disabilities Act: Public Accommodations and Commercial Facilities.”