From our partner Toni Ahl at EEO Advantage
When an employee puts the employer on notice of the need for an accommodation under the Americans with Disabilities Act, (ADA), the employer must engage in the interactive process with the employee. Some employee requests are not as clear as others. It is imperative that first-line supervisors are trained to recognize requests for accommodation. In all likelihood, the initial request will be made to someone other than a trained HR professional. If a request is not acted upon in a timely manner, the employer may be liable for failing to accommodate the employee. We need to remember than many disabilities are unseen. If a disability is obvious, a request by the employee may not be necessary.
Requests for accommodations can come from various sources. Let’s consider a few of them:
From the employee—Employees are not generally going to use the word accommodation in making the request. Saying something like, “I need some help in doing my job” might trigger the need for a discussion about accommodation. An employee could make a statement about a new medication which the doctor prescribed is having a bad side effect. This could be a clue that the employee needs an accommodation. An employee could provide a medical statement that indicates the employee might need an accommodation.
From a family member—The family member of an employee could request an accommodation on behalf of the employee. The request could come as an employee is returning to work after an illness or injury. Most of the time, these requests are made to the employee’s first-line supervisor or HR. The family member may just be providing information about the employee’s return to work but may state something about a special need for the employee.
From a medical professional—A statement received from a medical professional about an employee’s return to work may state restrictions the employee has which could limit the ability to perform job functions. It is helpful if the medical provider understands the employee’s essential job functions before listing restrictions. The employer may need clarification of a statement from a medical provider before engaging in the interactive process.
From other sources—If an employee has a job coach or vocational rehabilitation counselor, that person may contact the employer about accommodations for the employee. A job coach might recognize the need for an accommodation while on the job with the employee. A vocational rehabilitation counselor may be familiar with the job duties from a prior interaction with the company and be able to assess the need for an accommodation before an employee is placed with the employer based on the impairments of the employee.
Once an employer is put on notice of the employee’s need for an accommodation, the two parties need to engage in an interactive process to determine what accommodation(s) may be put into place. Employers are not required to provide the accommodation requested by the employee. The employer is, however, required to provide an accommodation that is effective. There should be a discussion with the employee and the representative of the company who is responsible for determining reasonable accommodations. Simply denying a request does not constitute an interactive process.
The employer may ask the employee what the requested accommodation might be as a starting point. The discussion should then be a dialogue between the employer and employee. Third parties such as the Job Accommodation Network (JAN) can also be contacted during this process for assistance in determining what accommodations are available and effective. The website for JAN may be accessed at askjan.org. It contains a wealth of information about disabilities as well as accommodations. It is a free service.
If an employer fails to accommodate an employee, and the violation is found to be willful, punitive damages of up to $300, 000.00 may be assessed if the employer has 500 or more employees. The employee may also be eligible to receive compensatory damages for out-of-pocket expenses incurred as a result of the failure to accommodate.
It is illegal to take action against an employee for requesting an accommodation. This may be considered to be retaliation because the employee has exercised a legally protected activity.
If you have questions about the interactive process, feel free to reach out to me at email@example.com or (502) 553-7648.