Talking with Disabled Employees About Reasonable Accommodations
The ADA is not a state or local law, but a federal statute, that applies to employers with at least twenty employees, as well as staffing agencies and labor organizations. However, the ADA is not the only law that protects disabled persons in employment situations; several states also have disability laws that further protect the interests of disabled employees. It is important not only to comply with the ADA, but also any state laws that might govern this practice.
One of the most difficult and contested provisions of the ADA is the “reasonable accommodations” clause, which is fairly subjective and is up to each individual employer. For example, hiring a store clerk with an amputated leg might require such reasonable accommodations as providing a stool or chair for the employee while at work. These reasonable accommodations must be made at the employer’s expense.
In order to protect oneself from liability, an employer should engage the disabled employee in an interactive discussion about reasonable accommodations; in other words, a discussion should take place regarding the disabled employee’s needs and requirements. Failure to include a disabled employee in the arrangements for employment could render the employer liable for discrimination lawsuits.
Often, it is best to have this conversation during the application process so that you, the employer, can be certain that reasonable accommodations can be made. If you wait until after you’ve offered a position to the disabled applicant, you might find yourself in a bind.
These conversations are difficult if either the employer or the disabled employee is not open and honest with the other. Many disabled employees are self-conscious about their disabilities, and might have trouble voicing their needs to a prospective or current employer. As the employer, it is your job to provide a comfortable and non-judgmental forum through which the employee can explain his or her condition.
The disabled employee may or may not state specifically what he or she needs. It is often the case that the employee gives a basic description of his or her disability, and the employer will be required to make specific accommodations. This can be difficult if the employer doesn’t understand the disability, or misunderstands the extent of the disability.
Another problem is if the disabled employee requests an accommodation that cannot be fulfilled. It is not the employer’s obligation to provide the exact accommodation that the employee requests, but a ‘reasonable alternative’. If the employee doesn’t consent to the accommodation that feel is adequate, then steps must be taken to attempt to work out the situation from both sides.
Ultimately, you may end up in court, at which time you will need to prove that you exercised reasonable attempts to accommodate the disabled employee. Having involved the employee in an interactive dialogue about accommodations will strengthen your case.
