Posted on Friday, January 19th, 2024.
EMPLOYERS: GET READY TO BE INTERACTIVE
As mentioned in a previous post, the ADA prohibits discrimination against individuals who have a disability. Employees who have a disability have the right to request reasonable accommodation. When the disability is obvious, the right to a reasonable accommodation is triggered even without an employee’s request. The first step in addressing a request for accommodation is the “interactive process.”
The first step in the interactive process is recognizing that the employee has requested an accommodation or needs an accommodation. Accommodation requests are not always obvious or blatant, as some requests are made subtly. For example, it is obvious that an employee has requested an accommodation when she states, “I am requesting an accommodation of my work schedule because of my chemotherapy treatments.” However, a less obvious request is an employee who uses a wheelchair and informs her employer that her wheelchair cannot fit under the desk. The second employee did not directly state that she needs an accommodation but nevertheless she has requested one. Once an employer recognizes that an employee is requesting an accommodation, an employer should request additional information in order to better understand and assist an employee. An employer should request a physician’s certification when the need for an accommodation is not obvious.
IMPORTANT NOTE: Employees only have to provide sufficient information when requested to provide a medical documentation. This means that if an employee’s physician states what the employee’s disability is and that she needs an accommodation, an employer cannot request further information. However, the employer may request medical documentation if appropriate to evaluate whether a requested accommodation will be effective in allowing the employee to perform the essential job functions.
After an employer gathers sufficient information and receives medical documentation, the employer should explore possible accommodation options. Sometimes an employee’s physician may provide the sufficient information to determine what accommodation the employee needs. However, this is not always the case. In such instances, the employer will have to work with the employee to determine the appropriate accommodation. Remember, accommodations only need to be reasonable, and need be sufficient only to allow the employee to perform the essential functions of the job. An employer is not required to acquiesce to every accommodation an employee requests. Employees are not automatically entitled to the accommodation of their choice, or to the “best” available accommodation. An accommodation that allows the employee to perform the essential functions of the job without posing a direct threat to the health and safety of the employee or others is sufficient. Similarly, if an employee’s request would create an undue hardship, an employer may likewise offer an alternative accommodation that would also accommodate the employee.
NOTE: Further discussion on what qualifies as an undue hardship will be provided in a subsequent post.
If an accommodation is made available to the employee, the employer should follow-up with the employee to ensure that the accommodation is effective. If an accommodation is not working for an employee, then the employee and employer can engage in the interactive process again.
For further information on the ADA and the interactive process, consult one of the experienced labor and employee attorneys at Trimboli & Prusinowski, LLC. Call 973-285-1095 to set up an appointment with an experienced attorney who can assist your business and you.