Happy Halloween!
Happy Halloween!

A few weeks back, I attended a chat seminar put on by the Society for Human Resources Management on reasonable accommodations and the ADA. What happens in that kind of seminar is that people write in their questions online and then knowledge advisors respond. The knowledge advisors are very good about providing resources and not stepping into the realm of legal advice. Since I am an attorney, I thought I could go into more depth on the answers, though of course, what is said here, does not constitute legal advice. For that, an attorney-client relationship is needed. I have made the questions of general applicability so as to make sure it isn’t possible to know the specifics of any question. So, happy Halloween! And here goes:

  1. What does an employer do if an employee can’t or will not get a doctor’s certification for accommodations/ when does an employer have the right to ask for medical documentation?

Answer: The employer has a perfect right to ask for reasonable documentation with respect to any request for accommodation. The key is the interactive process, and failure of an employee to engage in the interactive process means they are no longer otherwise qualified per the ADA. So, I would make it clear that you are attempting to work with the individual and that it is important for them to engage in the interactive process. Let them know that failure to engage in the interactive process may mean that they are no longer qualified under the ADA. Keep the interactive process collaborative rather than adversarial whenever possible.

  1. A person uses up all of their FMLA leave, what does an employer do now?

Answer: A colleague of mine, Jeff Nowak, has a blog, now in my blogroll, focusing entirely on the FMLA. He wrote an excellent piece on this subject, which can be found here. Also, check out my blog entry on Severson, which can be found here.

  1. If a company has a rule that they do not give out vacation time for let’s say six months after starting to work, must the employer grant vacation time anyway to accommodate a person with a disability?

Answer: One of the myths about the ADA is that it doesn’t apply to people on probation. It most certainly does. Further, if the person has just started work at a new employer, then the FMLA won’t apply either regardless of the number of employees the employer has. So, the key here is the interactive process and looking at whether the person can do the essential functions of the job with or without reasonable accommodations. Consider whether attendance is necessary to perform the essential functions of the job per this blog entry. Also, be sure to consider how your jurisdiction deals with mandatory reassignment, such as discussed in this blog entry. Finally, be sure to check out what the Job Accommodation Network says about possible reasonable accommodations.

  1. How important is recruitment and advertisement and documenting physical demands of the job?

Answer: It is important as this is one of the EEOC factors to consider when deciding what is an essential function of the job. The question wouldn’t just apply to physical demands but to other kinds of demands as well, such as mental ones.

  1. A person is out on workers compensation and returned to work with an adjusted modified work schedule being requested, is that a reasonable accommodation?

Answer: The key here is the interactive process. An employer does not have the obligation to create light-duty positions if they don’t generally offer those light-duty positions. Also, definitely want to look at the essential functions of the job and whether they can be performed with or without reasonable accommodations. Hiring a person to do an essential function of an employee’s job is not a reasonable accommodation. That said, don’t forget that the question is whether the employee can perform the essential functions of the job WITH or without reasonable accommodations.

  1. When does a reasonable accommodation become unreasonable?

Answer: A reasonable accommodation is whatever gets the person with a disability to the same starting line as a person without a disability. So, be creative! Under title I of the ADA, an accommodation becomes unreasonable when it constitutes either a financial or logistical undue hardship. A financial undue hardship is very difficult to show since the vast majority of accommodations do not cost the employer anything. Those accommodations costing the employer something are not expensive, generally $500-$1400. Further, it is the entire business that is looked to when deciding undue financial hardship. With respect to logistical undue hardship, the best way to think of it is whether the accommodation would fundamentally alter the nature of the operations of the business.

  1. What does the employer do if it is a third-party informing the employer of an employee’s disability and not the employee?

Answer: Disability related information cannot be kept in regular personnel file, rather it must be kept in a separate confidential file. The question I have is whether there are any work performance issues. If not, keep the information in mind should the situation arise later. If there are work performance issues, then you can ask the employee if there is anything you can do to help as performance seems to be trailing off and see how the employee responds. It is also helpful if you have an ADA/504 coordinator, which you are supposed to have anyway if you have more than 15 employees and take federal funds (Rehabilitation Act), or more than 50 employees (ADA).

  1. Company has allowed an employee to not perform all essential functions of the job for many many years. Now, the company is demanding performance of all duties.

Answer: Under this scenario, it is clearly time to revisit just what the essential functions of the job really are. Remember, it is ultimately what is actually happening on the ground that dictates what the essential functions of the job are. Here, a strong argument exists that the job duties that have not been performed for many years are not essential and could be given to someone else. Finally, develop a system to periodically review the essential functions of the jobs with the focus on how the jobs are actually being performed.

  1. What kind of documentation is needed for a service animal or support dog requested by an employee?

Answer: This one gets complicated. The rules for service dogs and support dogs may be very different depending upon the title of the ADA involved as we discussed here.

  1. Who pays for an ASL interpreter?

Answer: The employer. It is possible that vocational rehabilitation services might be of assistance to a particular employee. Also, check out this blog entry.

  1. If an employee is a minor, must the parents be involved?

Answer: If things are going well, it shouldn’t be an issue. If not, the first step would be to engage in the interactive process with the employee. Don’t forget about contacting the Job Accommodation Network. As a matter of preventive law, it might make sense to involve the parent if need be, but I would get the permission of the employee to do that first.

  1. What happens if an employee refuses an employer’s reasonable accommodation offer?

Answer: Assuming an interactive process has occurred, the rejection of the reasonable accommodation offer would mean that the employee is no longer qualified under the ADA and loses his or her protection. Remember, the employee is not entitled to the reasonable accommodation they want, rather it is a negotiation process between the employer and the employee.

  1. How much documentation can be requested to establish a disability?

Answer: Ask for reasonable documentation and do not make it overly intrusive. Using common sense will help here.

  1. What if an employee in need of an accommodation cannot afford to pay for a doctor to assess his or her condition?

Answer: Use common sense and the interactive process. Are there free clinics the employee can go to?

  1. When asking for a doctor’s certification, should the job description be attached every time?

Answer: As a matter of preventive law, I generally would as jobs can change over time.

  1. Is teleworking a reasonable accommodation?

Answer: Check out this blog entry.

  1. What are the rules for alcoholics and drug addicts?

Answer: They are not the same. Check out: this blog entry (“current” illegal drug user); this blog entry (medical marijuana); and this blog entry– including the comments-  (Sarkisian-alcoholism).

  1. Does ADA think enter into accommodating a person who is pregnant?

Answer: Yes. Check out this blog entry by my friend and colleague Robin Shea. Also, read this case, UPS v. Young.

  1. What kind of doctor needs to offer the medical documentation?

Answer: Best approach would be to make sure the medical professional has knowledge of the individual and substantive knowledge of that disability. Use some common sense here.

  1. How often should employees get trained on ADA issues?

Answer: As often as possible. Make sure, the person doing the training is knowledgeable. Also, I would say in new orientation for sure. After that, yearly for sure. Ideally, twice a year. You could have a roundtable at the six month mark and a more traditional and bigger training at the end of the year.

  1. This entry is not legal advice!!!!!!

Feel free to contact me with any questions or to discuss any training needs that you might have.

 

Happy Halloween!

Happy Halloween!

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