Another ADA checklist: The common interactive process pitfalls
Recently, we ran a post outlining seven areas you need to cover when navigating the interactive process of the ADA. This time around, a look at the landmines you need to avoid.
These guidelines come courtesy of attorney Kelli Gemelli of JacksonLewis, writing on the California Workplace Law blog.
The reasonable accommodation process “can be tricky,” she says in a masterpiece of understatement, and mistakes are easy to make. Some of the most common:
Not recognizing an accommodation request was made. Sounds outrageous, but think about it: Managers don’t always pick up on what employees say, and employees don’t always express themselves clearly. “A best practice is to have a policy that requires employees to consult with your human resources department – rather than supervisors – if they need an accommodation,” says Gemelli. “By doing so, companies limit the amount of confidential information being reported to supervisors.”
Asking for too much medical information. Federal and state law limit how deeply employers can dive into employees’ medical files. The guideline: Ask only for information that directly relates to the employee’s limitations in performing the essential duties of his/her job.
Denying an accommodation request because the employee did not provide a solution. Even if the employee can’t define what he or she is seeking, the employer is still required to go through the interactive process. It’s entirely possible a reasonable answer might be found during the process.
Ending the accommodation dialogue because you can’t find a reasonable accommodation that would allow the employee to perform the job’s essential functions. “If an employee cannot perform the essential functions of the job, the employer should see if other accommodations can be made such as reassigning the employee to an open position, allowing the employee to work part time or providing the employee with an unpaid leave of absence,” says Gemelli.
Invoking the “we’ve never done things that way before” defense. No way that flies in court. A reasonable accommodation is a reasonable accommodation, no matter what company history says.
Failing to document the process. You saw this one coming, right? As the saying goes, “No paperwork, no defense.”
Stretching the “undue hardship” parameters. It’s important to remember, Gemelli says, that cost alone rarely qualifies as an undue hardship on an employer.
