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Five Magic Words that Can Prevent an ADA Claim

Throughout 2018, we have seen a number of issues with employees with disabilities and their requests for accommodation.  When it comes to the Americans with Disabilities Act (ADA) and the reasonable accommodations employers must make to comply, it is rarely simple.  But, There are five words HR should train supervisors to say that can ensure even the most complex situations start out legally sound: “How can I help you?

Companies need to train their supervisors to heed the ADA’s rules and regulations, all by first posing that simple question to employees who indicate they’re having difficulty working because of an impairment or request an accommodation. Once they’ve got that down, there are a few more training items that can help managers prevent disability discrimination claims.

Explore solutions and document everything, including:

  1. What the person said when they came to the supervisor
  2. What the supervisor said (Hint: it should be those five magic words.)
  3. What the person requested
  4. That the supervisor agreed to consider how to make such an accommodation
  5. That the supervisor did not make any inquiries about medical information
  6. That the supervisor followed up with the employee on the progress of their request
  7. That the supervisor made such accommodations, provided they did not present an undue hardship on the company

Engage in the interactive process

Supervisors don’t fill the role of a parent or a doctor to their employees. The employee generally bears the burden of informing supervisors of their condition, especially if the common eye can’t detect it. The employer then inherits some responsibility once the employee has come forward with a problem.

When an employee tells a supervisor that a medical condition is impeding his or her work, a supervisor should know that the interactive process has been launched.  Supervisors should invoke the five words and, if the fix is simple, allow it and document, as discussed above.

On the other hand, if an employee’s condition is obviously interfering with his or her work, managers have a responsibility to speak up. The supervisor can take the employee aside, point out the performance problems, and ask how they can help. The employee may refuse assistance and, in that case, the supervisor can step back and document that the problem was addressed and assistance was declined.

Giving ‘preferential treatment’

The law obligates employers to grant reasonable accommodations that would remove a workplace barrier so that people with disabilities can carry out the essential functions of their jobs, so long as it doesn’t cause any undue hardship for the workplace. This may require, for example, an employer to exempt an employee from a policy or to provide special equipment.

Supervisors often are wary of providing special treatment, but that’s exactly what the ADA requires. Train your supervisors that they must give more to people who need a reasonable accommodation.

Document, document, document

Managers should be trained to document every step of the interactive process, as thorough documentation can serve an employer well in court.

Leaves of absence are often offered as an accommodation. If you’re defending an ADA claim and arguing that an employee’s leave became indefinite, a paper trail will bolster your point. A supervisor can document how much the employee initially asked for, how many extensions were granted and how the workplace coped with their absence.

Supervisors should also carefully document three things when an accommodation involves temporarily relieving an employee of a certain duty. An employee with an injured back, for example, may take a break from lifting heavy items. In that case, managers should document that:

  1. The supervisor and the employee understand that the duty in question is an essential part of the employee’s job
  2. Per the employee’s request, the employee will not perform that duty temporarily
  3. The employer’s definition of “temporary”

Respond to questions from co-workers appropriately

When an employee with a disability receives a reasonable accommodation their co-workers often have questions. What can the supervisor say when one employee inquires about another employee’s change in professional circumstances? The U.S. Equal Employment Opportunity Commission suggests that supervisors explain that they acted for legitimate business reasons and in compliance with the law. But most supervisors don’t speak with such heavy-handed legal jargon. So what should they say? Teach supervisors to say, “it’s private information that I can’t tell you.” It’s a harsh reply, but it protects employers from liability.

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