After the Job Offer
The ADA strictly limits inquiries about perceived disabilities after an employee is hired, and an employee does not have to disclose this information. An employee may choose to bring a medical condition to your attention because she needs a reasonable accommodation in order to perform her job, or a pre-employment physical may determine that one is necessary. A reasonable accommodation is an adjustment in the way a job is performed, the hours that are worked, or other criteria in order to enable someone to perform the essential duties. But first there are steps to formally implement a reasonable accommodation, and this is called the interactive process.
ADA Interactive Process — Step One
The first step in the interactive process is for the employee to bring to your attention the need for a reasonable accommodation due to a disability. She may volunteer to share the information — most people with a disability are aware that they are expected to inform their employer if they require an accommodation. She may inform you verbally; it does not need to be in writing. However, if she can perform the essential functions of the job without an accommodation, she does not have to inform you of a medical condition. If you have observed performance issues that would indicate a need for accommodation due to performance or safety concerns, you may ask her about the need for an accommodation. Again, you may initiate this conversation only after you have witnessed something that causes concern; do not ask based on an assumption or rumor.
The purpose of the interactive process is to identify an ADA recognized disability; learn about the employee's work restrictions; and determine if there is a mutually agreed-upon accommodation that will allow the employee to perform her job safely without the reasonable accommodation causing undue hardship to the company.
Confirm the disability with written verification from the employee's physician that an ADA disability exists. This can be difficult since not all conditions are covered. You will also need written instructions from the physician that describe the employee's limitations and restrictions. A restriction that indicates “No heavy lifting” is incomplete. However, “No lifting more than fifteen pounds above shoulder level” is the kind of detailed restriction you need. Be aware of other vague limitations such as “Light duty” and “No prolonged standing.” These examples do not tell you what light duty is considered to be or how much time is considered prolonged. Detailed restrictions will protect both the company and the employee. The employee will probably know what her limitations are, but you want to be sure that there is no misunderstanding about what she can and cannot do. Your job is to protect the employee's health and the company's liability. Remember that an employee does not get to pick and choose the reasonable accommodation. If an employer has a reasonable accommodation that will allow the employee to perform the essential functions, they have met their burden with the ADA.
Due to privacy laws, there may be a limit to how much information the doctor can give you about the employee's condition. However, you should receive enough information to help you determine if the employee has a disability as defined by the ADA. Most physicians will cooperate when assigning restrictions based upon the condition. Doctors should be very familiar with ADA regulations, work restrictions, and the paperwork that goes along with helping their patients communicate adequately with employers.
What determines if a medical condition qualifies as a disability?
If a person is substantially limited in her ability to perform manual tasks, walk, see, hear, communicate, learn, breathe, or work, she may be defined as disabled. It's not only the condition that determines whether or not there is a disability; the person's limitations and restrictions play an important role, too.
It is not up to the employer to determine whether or not an employee is disabled. Many qualifying conditions are not apparent, and some may be obvious only during an incident, such as someone with epilepsy having a seizure. You can't tell by looking at a person if she has HIV, cancer, rheumatoid arthritis, kidney disease, diabetes, high blood pressure, alcoholism, mental illness, or any of the many other illnesses and conditions that may qualify for ADA protection.
ADA Interactive Process — Step Two
The second step in the interactive process is to determine if the employee will be able to perform the essential duties of the job with or without reasonable accommodation, while causing no undue hardship to the company. It is important to determine the essential duties of the job during this step. Here are some things to consider:
Amount of time spent performing the task
Employer's perception of the essential duties
Relevance of the task as indicated on the job description
Hardship suffered by the company if the employee is unable to perform
Work experience needed to perform the job
Once the essential duties have been identified, both you and the employee should offer your suggestions for reasonable accommodations. The goal of the interactive process is to negotiate an accommodation that is suitable for both parties; one that gives the employee the opportunity to perform her job safely at a production level acceptable to the company. You and the employee may agree on an accommodation quickly and easily. Other times, the conversation may go back and forth until a viable solution is agreed upon. Give the employee ample time to explain why she feels an accommodation may or may not work. You are able to have your say as well, making your viewpoint clear to the employee from a business point of view.
Turn to the EEOC's policy entitled
There are several ways to reasonably accommodate an employee's disability. Some of these ideas are to purchase or modify equipment, reassign duties, change the way a job is performed (allow an employee to sit instead of stand), offer an alternative work schedule, or transfer the employee to another position. Employers are not required to purchase personal items for employees such as hearing aids or a special type of shoe that the employee must wear. Contact your state's Department of Rehabilitative Services or equivalent office. They are an excellent resource and can either fund or find funding for accommodations, as well as do onsite evaluations of what could be a reasonable accommodation for the job.
The EEOC recognizes telecommuting (telework) as a reasonable accommodation. President George W. Bush's New Freedom Initiative emphasizes the value of today's technological advancements that have made it possible for many disabled workers to work from home. Not all jobs can be performed at home, and the ADA does not require employers to offer telecommuting as a reasonable accommodation. However, if telework is offered for some positions, employees with disabilities who work in those positions must be allowed to participate. You may have to modify the telework policy, such as waiving a rule that dictates how long an employee must work for the company before being allowed to telecommute. Additionally, if the company does not permit employees to telecommute, it may still be used as a way to reasonably accommodate an employee with a disability. In other words, you may make an exception for a disabled employee if it will give her the ability to perform her job.
You are under a legal obligation to transfer the employee to another position if there is one available — or soon to be available — that meets her qualifications and skills. If there is no position available, you are not expected to create a new position, nor are you expected to bump an employee from an existing position in order to make room for the disabled worker. Additionally, the need for accommodation should not be used as a reason to promote an employee into a new position.
If an exception is made for an employee with a temporary disability, discontinue the accommodation as soon as you receive written orders from the employee's physician that she may return to her usual work duties. Work restrictions issued by a doctor should always be designated as permanent, or have an ending date which may be extended.
When an exception is given to an employee, another worker may complain. It is unlawful for you to share any information about a disabled employee to another worker. Simply inform the employee who complained that the company has granted a reasonable accommodation as allowed by law and that you are not permitted to disclose the reasons behind it. Assure her that the company is not participating in selective preferential treatment. The employee with the disability is free to disclose her condition if she so chooses, but do not encourage or suggest that anyone ask her about it. It is recommended that you include training about privacy issues and disabilities in the workforce to all new hires.
ADA Interactive Process — Step Three
The third step is to put the reasonable accommodation into action or, unfortunately, inform the employee that an accommodation is not possible. An employer is not required to grant an accommodation if it will result in undue hardship. An undue hardship is one that may incur an unreasonable expense or an unsatisfactory level in performance or production. The size of an employer, its resources, and the nature of the business are determining factors in considering a hardship as well.
The employee may be the one to feel that there is no viable option for accommodations. You may offer a reasonable accommodation within the employee's work restrictions, but the employee may refuse to accept it. You cannot force an employee to report to work, nor can you allow him to work against his doctor's restrictions. If the disability is temporary, you may offer a leave of absence (LOA) or you may be required to allow a LOA under FMLA, if applicable (see Chapter 12 for more about FMLA). If the employee's disability is permanent and she does not accept your offer for a reasonable accommodation, your only option may be to end the employment. You are well within your rights to terminate an employee the same as you would any other employee who refuses to report to work. If you are a manager or business owner and have a human resources department, consult with them before taking action. You may have to turn to legal counsel, but this is not necessary most of the time.
ADA Interactive Process — Step Four
The fourth step in the interactive process is documenting. A detailed, written synopsis of the verbal communication will help ensure that both parties have an understanding of the employee's work restrictions and whether or not a reasonable accommodation is available. Here is what you want to include:
When and where the discussion was held and who attended
The date you were informed of the employee's work restrictions
A description of the work restrictions
The essential duties of the job that will be affected by the restrictions
The accommodations that were suggested, and by whom
Input from both parties regarding the suggested accommodations
A description of the reasonable accommodation (if applicable)
The duration of the reasonable accommodation (if applicable)
Notification that a reasonable accommodation is not possible (if applicable)
Ask the employee to review a draft of the written documentation before asking her to sign it. The document should be signed by everyone who attended the discussion. Give the employee a copy for her files. Your copy is to be kept in the employee's medical file. If a follow-up meeting occurs, document the event in the same manner. Check with the employee periodically to inquire if the working conditions are comfortable for her or if she has any questions or concerns. If there is a change in supervisory structure of that employee, make sure that the new supervisor is informed of the agreed-upon accommodation. Keeping the lines of communication open will increase the chances of a successful work arrangement.
