9 Action Items to Minimize Risks for Disability Discrimination Claims

How can an employer minimize the likelihood of facing a disability discrimination claim? There are actually a lot of steps employers can take to reduce this risk. Here are 9 of these actions.

1. Inform administrators and HR personnel about the changes in the DSM-5 to prepare them for new requests for accommodation or leave due to an expanded or new diagnosis. (DSM-5 is the new edition of the Diagnostic and Statistical Manual of Mental Disorders, released by the American Psychiatric Association on May 18, 2013).
2. Train supervisors to recognize when an employee’s communication is actually a request for reasonable accommodation, even if the word “accommodation” is not specifically used. Include information on what to do if you suspect that a condition may be causing performance issues.

   “[Supervisors] need to know when there is a trigger for an interactive process because of observable problems with performance in the workplace. The best thing to do is treat it first as a performance issue, and then let the employee (as a response to your addressing it as a performance issue) to say ‘well, I’ve got this issue.'” Patricia Eyres told us in a recent BLR webinar.

3. Remind supervisors to contact HR for assistance in addressing these complex issues.
4. Carefully document the employee’s work restrictions and the interactive process undertaken to determine how those restrictions might be accommodated. Focus on the restrictions, not the diagnosis.
5. Review job descriptions for any employees who are in the process of being disciplined for inappropriate workplace behavior and request an accommodation at that time. While it may be tempting to dismiss this as a way to get out of discipline, listen to their situation and determine whether the restrictions they’ve outlined will affect the essential functions of the position.
6. Don’t miss an obligation to conduct the interactive process. Consider what kinds of accommodations, if any, can be made to permit such employees to perform their job and comply with standards of conduct. There may not be a solution, but it is important to still conduct the process. Don’t dismiss the disability simply because it’s a conduct issue that has brought it to your attention.
7. Be prepared to address extended leave requests and accommodation issues for employees who have experienced the loss of a loved one and are having difficulty returning to their regular activities. This may well extend beyond bereavement to leave to FMLA for the employee’s own serious health condition. (This is because DSM-5 has removed the bereavement exclusion from the definition of major depressive disorder. Now, experiencing these symptoms for more than two weeks may qualify, even if the symptoms stem from bereavement.)
8. Always consider leave as a reasonable accommodation independent from FMLA and employer-sponsored sick leave.
9. Prepare to engage in the interactive process with employees who seek a reasonable accommodation based on a new or updated set of restrictions. Remember that the employer’s duty to accommodate is a continuing duty, and that circumstances can change. What was once an acceptable reasonable accommodation may not be so forever.

For more information on how to avoid disability discrimination claims, order the webinar recording of “DSM-5 Standards and the ADA: Accommodation and Compliance Obligations for New Mental Disorders.” To register for a future webinar, visit http://store.blr.com/events/webinars.

Patricia S. Eyres, Esq., the managing partner of Eyres Law Group, LLP, focuses on helping employers manage disability discrimination issues for both workers’ comp and non-occupational disabilities. As president of Litigation Management & Training Services and CEO/Publisher of Proactive Law Press, LLC, Eyres trains managers and supervisors on how to recognize risks, prevent lawsuits, and maintain defensible documentation.