Employment & Labor Insider

Back in November, I had a post with tips for employers about reasonable accommodation of disabilities, pregnancy and lactation, and religion. Kind of “big picture,” if you will.

"This isn't gonna be a view from 35,000 feet, is it?"

Today I want to take a more focused look at handling individual requests for disability- and pregnancy-related accommodations.  

Reasonable accommodation continues to be difficult for many employers, and that isn’t surprising. First, the accommodation process is very fact-specific and flexible (my professional technical legal term of art for it is “loosey-goosey”). This is in contrast to, say, a law like the Family and Medical Leave Act, where everything is spelled out ad infinitum. Or ad nauseam. Or "to the point of infinite nausea." Reasonable accommodations are tough because all jobs are different, and all medical conditions are different. Even two employees in the same job with the same medical condition may be affected in different ways.

So here are my 10 "easy" steps that employers can follow in handling individual employees’ reasonable accommodation requests related to medical conditions, including “disabilities” within the meaning of the Americans with Disabilities Act and pregnancy-related conditions.

TEN "EASY" STEPS

Step One: Confirm the employee’s condition. If the claimed medical condition is not obvious, you may need confirmation from the employee’s health care provider. You can also confirm pregnancy (or a pregnancy-related condition), but if the pregnancy is obvious (for example, the employee is eight months along and big as a house, and just needs a stool to sit on during her shift), that should be confirmation enough. Likewise, don't ask for confirmation if the employee needs accommodation for an obvious disability. However, the vast majority of disabilities are not obvious. Some of the most common medical conditions needing accommodation are cancer, learning disabilities, or depression or anxiety, none of which are "visible." For those, you are likely to need confirmation from the health care provider. And when you are confirming, be sure to also ask for the provider's recommendations regarding any adjustments that should to be made to the employee’s job duties or work schedule. That information will come in handy later.

"I'd take a closer look, but this snout is blocking my view."

Step Two: Err on the side of treating the medical condition as one that might qualify for reasonable accommodation. (OK, this isn’t really a “step,” but it’s important.) I blogged not long ago about an employer who took the position in court – in this day and age! – that an employee with ovarian cancer that had metastasized to her liver did not have a “disability.” Nice try, but no. And under the ADA, a medical condition can be a qualifying disability even if it is completely controlled by medication or other “mitigating measures.” (If the condition is completely controlled, you'd only have to avoid discriminating on the basis of the condition. Presumably, there would be no need to accommodate.)

Step Three: Determine whether the employee needs, or even wants, reasonable accommodation. If not, you’re done. You can read the rest of this post just for the fun of it.

Step Four: If the employee needs or wants accommodation, and if you can grant it, then by all means grant it. Then you can skip to Step Nine, below. But if you can’t grant the requested accommodation, come up with an interim plan that you can follow while you figure out what to do next. Let the employee know about the interim plan before you put it into effect.

Step Five: Put the interim plan into place, and get any other medical information you may need (including further information from the employee’s health care provider). While you’re waiting to hear back, be looking for ways that you can accommodate the employee long-term in his or her regular job, as well as other jobs to which the employee could transfer if needed. Also, if applicable, consider the possibility of remote work or change from a full-time to a part-time schedule. Also, see "bonus" Step 11, below.

Step Six: Once you have the information you need, begin the “interactive process” with the employee if you haven't already done so. The discussions should include the employee, the employee’s functional supervisor, and Human Resources. The “interactive process” is just a brainstorming session in which the employee and the employer discuss reasonable accommodation options. In-person is ideal, but if the employee is remote or out on medical leave, this discussion can take place on a videoconference, or by phone or email.

Step Seven: If you and the employee agree on an accommodation, put it into place. You can then skip to Step Nine. In all other cases, the employee’s supervisor and HR should talk among themselves and determine what accommodations, if any, they can offer. Also, see "bonus" Step 11 below. If you haven’t been doing it all along, this is a good time to start consulting with your employment counsel.

"These progressive lenses are the greatest!"

Step Eight: Get back with the employee and offer the accommodation options that you’re able to offer.

Step Nine: Follow up. Once you have made the accommodation, check in periodically with the employee to make sure that everything is going well and to make any needed adjustments. Use the interactive process as needed.

Step 10: Document what you have done at Steps 1-9, plus Step 11, below.

Step 11 (BONUS): In deciding which accommodations to offer (see Steps 5 and 7), follow the ADA “reasonable accommodation priority” recommended by the Equal Employment Opportunity Commission. Per the EEOC, disability-based reasonable accommodations should be considered in the following order unless the employee expresses a different preference:

• Minor adjustments to the employee’s current job that will allow the employee to continue in the same position at the same rate of pay.
• If that doesn’t work, transfer to a similar job, with similar responsibilities, pay, and “prestige.”
• If that doesn’t work, transfer to a different job that may not be similar to the old job, and paying the going rate for the new position.
• If that doesn’t work, placement on medical leave (either FMLA leave, short-term disability leave, paid or unpaid leave under applicable state law, or whatever leave is authorized by your company’s policies or required by applicable law).
• If no accommodations are possible, and if all applicable leaves have been exhausted, consider an administrative (no-fault) termination. (Did I mention consulting with counsel?)

See? It’s as easy as 1, 2, 3, 4, 5, 6, 7, 8, 9, 10, 11!