Good communication is essential. This indispensable maxim is particularly important for employers and their disabled employees, according to David K. Fram of the National Employment Law Institute (NELI).
Not only can good communication between an employer and a disabled worker enable the worker to perform a job, it also can protect the employer from liability under the Americans with Disabilities Act (ADA).
Generally, the ADA requires employers to provide disabled but otherwise qualified workers with reasonable accommodations to do a job. More questions are raised about what is required by "reasonable accommodation" than about any other part of the ADA, Fram said at a NELI conference in Washington.
An employer is not required to provide a reasonable accommodation for a disabled person who is unqualified to perform the essential functions of a job. Rather, reasonable accommodation involves the removal of workplace barriers for otherwise qualified workers, Fram said. Employers are only required to remove barriers if it is reasonable to do so.
In order to determine whether an accommodation is reasonable, Fram said the Equal Employment Opportunity Commission generally instructs employers to look first at whether it works. But some courts, he noted, take the inquiry further by using a cost-benefit analysis. These courts view an accommodation as reasonable if its costs do not exceed its benefits. Fram said employers should keep in mind that the issue these courts are viewing is not whether an employer has the resources to accommodate an employee, but rather whether costs outweigh benefits.
An employee, not the employer, has a duty to seek workplace modifications. If an employee asks for a reasonable accommodation because of a disability, the employer must begin an "interactive process" with the employee, Fram said. The process that follows can make or break a case brought under the ADA's reasonable accommodation provisions, he added.
After an employer determines that a worker has an ADA-covered disability, the employer needs to talk to the employee to determine what accommodation is necessary. It is not enough, Fram said, to provide the employee with what the employee asks for. The accommodation must be effective.
If the employer and the worker are not able to come up with an effective accommodation, Fram suggested that employers call the Job Accommodation Network (1-800-ADA-Work), a government-sponsored service. Even if the network is unable to fashion an effective accommodation, an employer's contact with the network will protect it if a dispute about the accommodation goes to court, Fram said.
In litigation, courts are looking to determine which party was responsible for any breakdown in the accommodation process. An employer's good-faith efforts will provide it with protection from damages, Fram said, adding that employers should document every step taken when working to find a reasonable accommodation. After an employer finds one or more reasonable accommodations, the employer can choose which one to implement, regardless of the employee's preference.
Finally, once an accommodation is put into place, Fram advised employers to remember that information about an employee's medical condition is protected. If asked by other employees about the accommodation, Fram said employers should answer that the modification was made to comply generally with federal law rather than specifically with the ADA.
Although the ADA is a federal law that exempts employers with fewer than 15 employees, small employers should be aware that several states now have laws with language that tracks the ADA and that applies to even the smallest businesses. The trend among states is to expand employment discrimination laws to more employers and so small employers need to be more careful about taking a that-doesn't-apply-to-me approach to disability discrimination. Consult your attorney about what your state requires from you.