By Francesco DeLuca | It takes t
wo to tango. This adage applies to nearly every facet of everyday life, and the law is no exception. A recent federal appellate court opinion highlights the importance of the steps an employer should take when discussing possible accommodations with a disabled employee under the Americans with Disabilities Act. In EEOC v. Kohl’s Department Stores, Inc., the First Circuit held that an employer was not liable for discrimination under the ADA. In that case, the employer attempted to discuss reasonable accommodations with the employee, but the employee caused communications to break down by quitting and refusing to respond to two requests to reconsider her resignation.
Though the facts of Kohl’s are unique, the opinion serves as a reminder to employers that they need to discuss reasonable accommodations with employees who seek them.
When approached by employees with requests for “reasonable accommodations,” employers should provide a “Request for Accommodation” form, which includes a “Medical Certificate.” The form and certificate, when completed by the employee and the employee’s physician, should outline the employee’s needs and limits on job functions.
The employer should then engage employees in an “interactive process.” That is, a representative of the employer—typically, a human resources professional—would meet with the employees to discuss their limitations, potential changes to their routines that would overcome them, and the reasonable accommodations requested.
If the employees’ suggested accommodations would be difficult or expensive to implement, they may impose “undue hardships” on the employer — although the bigger the company, the more difficult for employers to claim undue hardship. However, this should not end the interactive process. Instead, the employer should continue to talk with the employees to determine if other less imposing accommodations would allow them to work comfortably and productively while continuing to meet essential job functions. The hope is that through this interactive process, the employer and employees can reach a common set of accommodations that will meet the objectives of the employees, employer, and ADA.
However, like in the Kohl’s case above, if employees become upset as a result of the employer’s decision to deny requests for specific accommodations and refuse to discuss the matter further, the employer should follow up with the employees, preferably in writing, to see if they are willing to reconsider their decision to terminate the interactive process.
When faced with a request for a reasonable accommodation, an employer must discuss possible accommodations with the employee making the request. Some employees may have only one accommodation in mind and reject all possible alternatives. When this is the case, the employer should follow up with the employee to ensure that it has met its obligations under state and federal discrimination laws. An employer who takes the lead in such situations, like the employer in Kohl’s, may be in a better position to avoid liability under the ADA. To learn more, contact Roger Hood.