Determining Reasonable Accommodation Through the Interactive Process: The number one call from HR Practitioners Ms. Brenda Kasper and Ms. Lisa Frank Partners at Paul, Plevin, Connaughton LLC and host Nina E. Woodard, President of SD SHRM discuss the workplace ramification of the Americans With Disabilities Act, acknowledging its 20th birthday as well as discussing the essentials of reasonable accommodation under the California Fair Employment and Housing Act.
What are the laws?
In this segment Kasper and Frank discuss the federal Americans With Disabilities Act and California’s Fair Employment and Housing Act that are important for California Employers to keep in mind.These laws require that we treat people differently in order to give them not only equal opportunity at work but in applying for work. Kasper and Frank not only litigate but also counsel. They help their clients be artful in the way they approach the law and incorporate their understanding of the law into the processes that support their business activity.
The number one issue is failure to engage in the interactive process which is the conversation that takes place around the issues that confront the employer and the employee. Employees are not allowed to diagnose or decide what they can and cannot do. However, the employer must be prepared to listen to the expressed concern of an employee and be prepared to move into the interactive process.
When does the interactive process begin?
Kasper advises, suspend your disbelief! Work your process. Having a process in place and listening and offering alternatives to enable the individual to do their job is key to understanding and working through the situation. Essential functions are never removed from the job, but creating the process that supports identifying options and allows for documentation of the steps taken are necessary features of a good practice and process. The average reasonable accommodation cost is $500 or less, creativity is everything. Understanding the value of flexibility is a key competency for HR practitioners now and in the future.
What happens if the employee doesn’t disclose a problem?
Ms. Frank and Ms. Kasper discuss when disclosure of a disability is required. Employers can ask during the application process if employees can perform the essential functions of the job with or without reasonable accommodation. If they say yes, that is all that is needed at this time. However, at some point in the process they still may need a reasonable accommodation. Even applicants have rights that need to be announced and honored. It could be a candidate needs an alternative form of applying for jobs if they are not able to utilize the on line application process. HR needs to be prepared to deliver alternatives.
Things not to do:
1) never engage in the interactive process via e-mail;
a) The interactive process may go 18 months or longer. Train managers, to understand how to work the process. Kasper and Frank role play utilizing attendance problems as the issue and identifying some solutions that would be acceptable under the law and would also provide the reasonable accommodation that is necessary to comply. It is important to document failure of the employee to comply with the reasonable accommodation that is offer. They advise creating the framework to support the employee to be successful, and if the employee fails to respond, it may be acceptable to end the interactive and support process sooner rather than later.
Closing segment: Parting Thoughts
Affective accommodation does not mean the accommodation of choice. Kasper and Frank share examples of employee requests and the resultant employer reasonable accommodation which help the employer understand that being reasonable doesn’t mean giving away the store. HR should never diagnose unless an employee self-identifies all situations should be approached as a performance issue. Only when the employee raises the issue of disability and asks for help does the interactive process begin. It is critical for HR to maintain perspective and remember to suspend disbelief.