Navigating the Interactive Process
Accommodating Employees with Disabilities – A Primer
State and Federal law require employers to make “reasonable accommodations” that will enable employees or applicants known to have disabilities to be able to perform the essential functions of the job. Requests for accommodation must be evaluated on a case-by-case basis. What works for one employee with a disability, may not work for another employee with the same disability.
What is a “Reasonable Accommodation?” The American’s with Disabilities Act and the Fair Employment and Housing Act do not define “reasonable accommodation,” but the cases and regulations interpreting and implementing those laws provide some guidance. Simply put, a reasonable accommodation is a modification to a job or the work environment that will enable disabled individual to perform the essential function of the job.
An accommodation is presumed reasonable unless the employer can demonstrate that the accommodation would impose an undue hardship. For example, the costs of making the accommodation are excessive in relation to the accommodation’s benefits. Generally speaking, the economic concerns must be very significant (i.e., threaten financial survival or unreasonable under circumstances).
Determining what accommodations are appropriate requires looking at the employee’s limitations and essential job functions. Essential job functions determined by actual work performed. Written job descriptions are relevant to determine essential functions, but only if the job descriptions accurately reflect the employee’s work and preferably were created before the accommodation became necessary. Courts also consider the consequences of not requiring the individual to perform the function and look at any applicable Collective Bargaining Agreements.
Employer can be liable for failing to engage in the interactive process of determining which accommodations will enable the employee to perform the essential functions of the job. If an employee fails to engage in the interactive process, the employee will not be able to prevail in a disability discrimination claim.
Although no magic words are necessary to trigger the duty to engage in the interactive process, the employee usually must start the process by requesting an accommodation. There is an exception where employer knows the employee’s disability interferes with the employee’s ability to request the accommodation.
The employer is not required to give the employee what s/he requests, but the employer is obligated to make some accommodation that will enable the employee to perform the essential functions of the job.
The interactive process works best when it involves the employee, the employer and to some extent the employee’s medical care providers. Employers must be careful, however, when asking for medical information. It is usually better to ask the employee to obtain the requisite information from the doctor instead of contacting the doctor director.
Accommodating employee disabilities can be difficult and we recommend contacting a professional familiar with accommodation issues at the beginning of the process. Through proper implementation of an accommodation process, employers can limit their exposure to costly litigation and help ensure disabled persons are disenfranchised.
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Phillip J. Griego represents employees and businesses throughout Silicon Valley and the greater San Francisco Bay Area including Palo Alto, Menlo Park, Mountain View, Los Altos, San Jose, the South Bay Area, Campbell, Los Gatos, Cupertino, Morgan Hill, Gilroy, Sunnyvale, Santa Cruz, Saratoga, and Alameda, San Mateo, Santa Clara, San Benito, Mendocino, and Calaveras counties.
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