Photo by: Daria Shevtsova
Here’s a common situation, an employee calls in sick and a couple of days later you receive a doctor’s note taking the employee off work for 2 weeks. If you are an employer with 5 or more employees in California, you are subject to the anti-discrimination provisions of the California Fair Employment and Housing Act (“FEHA”). If you have 15 or more employees, you are also subject to the Americans with Disabilities Act (“ADA”). Both laws require employers to find a reasonable accommodation for an employee who suffers a physical or mental disability so that the employee could return to work. California employers have the added duty to engage in the interactive process in good faith. The interactive process is simply engaging the employee in a dialogue to understand their restrictions and available accommodations.
Why does it matter?
From a management perspective, truly engaging in the interactive process and making the appropriate efforts to accommodate a disabled employee shows all your workers that they are valued beyond being merely disposable workers. From a legal/monetary standpoint, doing it right will prevent or allow you to successfully defend against very expensive disability discrimination lawsuits that average in the six figure range.
What to do when an employee requests an accommodation?
- Have a process in place.
Your employee handbook should outline your internal process for an employee to request an accommodation. Having a designated person to handle all accommodation requests makes it easier for you and the employee and helps ensure that no one drops the ball through a process that is expected to be continuous and interactive. Remember, merely asking for an accommodation is a protected activity.
- Engage in a dialogue.
Communicate with the employee as soon as you are aware that an employee is disabled and needs an accommodation. Document all interactions with the employee.
- Compile documents.
Gather the documents that will assist you in finding a reasonable accommodation for the employee. These include the employee’s job description, department expectations, performance evaluations, and ask the employee for a detailed description of his or her restrictions. Remember to keep the conversation on work restrictions and not the medical condition itself.
- Determine whether a reasonable accommodation exists.
The employee’s restrictions will guide you in determining whether a reasonable accommodation exists to help the employee return to work despite his or her restrictions. Reasonable accommodations include, but are not limited to, (1) making existing facilities readily accessible to, and usable by, individuals with disabilities; (2) job restructuring, part-time or modified work schedules, reassignment to a vacant position, acquisition or modification of equipment or devices, adjustment or modifications of examinations, training materials or policies, the provision of qualified readers or interpreters, and other similar accommodations for individuals with disabilities; and (3) providing the employee accrued paid leave or additional unpaid leave for treatment.
The difficult part about determining whether a reasonable accommodation exists is that there is no bright line rule on how hard an employer must try to find a reasonable accommodation. This is why disability discrimination is one of the most highly litigated issues in employment law.
- Explain your decision.
Communication is key and explaining your decision to your employee is an important part of the interactive process. Once an accommodation is in place, continue to check in with the employee to make sure that everything is working well for both of you.
Disability accommodation is full of landmines and the failure to do it right could expose your business to a lawsuit that could break your business.
Contact me at (949) 529-0007 if you have questions about the interactive process or disability accommodation.
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