How do the ADA and FHEA Laws impact small business
Our guests are Ms. Brenda Kasper and Ms. Lisa Frank both partners in the Employment Law Practice of Paul, Plevin, Connaught on and Sullivan. Both serve as advisors and counsel for employers.
Kasper and Frank identify that an employer with as few as 5 employees may need to consider how to work with reasonable accommodation when a request is made for support.
Claims are up 96% and of those 20% of claims are disability related in California. The costs to litigate through summary judgment are $100,000 to $150,000 and a trial may cost upwards of $ 400,000 excluding any penalties! So it makes sense to be familiar and take proactive steps.
For a small business it may be enough just to be prepared with what do to do or say when an employee asks for a reasonable accommodation. The Employer should never diagnosis or predict, but they do need to be prepared to respond properly if an employee self discloses and asks for an accommodation. Minimally an employer should have a handbook with references to the laws that apply and the appropriate guide for the employees.
How can I help you do your job? When asked for a reasonable accommodation or confronted with a problem situation this is the right questions to ask.
donâ��t argue â�� do not express irritation to employee
didnâ��t ask what medicines they are taking
Donâ��t ask what their problem is â�� the employer only need to know if the employee can do their job
The employerâ��s role is to help them do their job â�� not help them get well or even connect them with proper health care
Focus on essential elements of job and how they can do their job
Essential function â�� it is the job â�� elements of work that is done all day
If there are taking some medication what is the employerâ��s responsibility. The question is: â��are you able to safely perform your job on this medication?â�� It is appropriate to ask for a healthcare providers assurance that the medicine will not create a barrier to successful performance of the job, if there is some doubt. Use HR to ask these questions or ask your attorney to assist. It is important to get expert advice from a professional. Be thinking :â��What is going on? What do you need? As the employer you are able to say that the employee may not work until you have a professional health care providers opinion that it is safe for the employee and for others in the workplace.
Disability Discrimination means that there is DIFFERENT treatment for those who are disabled based on their unique needs.
What if an employee is just behaving strangely? The person is doing their job, they do not have direct contact with the public but they come to work with tinfoil pointy ears or a typically a great performer â�� usually well-kept begins to be unkempt and is now disorganized?
A business owner can say: â��I have noticed in the last month that (articulate the issues you see) â�¦â�¦â�¦.How can I help you? â��
Impacts on employers of ADA and FHEA
An employee is talking about guns or suicide. What should an employer do? The words are the key. What exactly did they say? Is the employee a danger to self or others?
When would you terminate and employee? If the threat is real an employer should terminate.
Otherwise the questions remain; Can they do the essential functions? How can you help them, and once they identified themselves with a disability use the interactive process. The interactive process is a collaborative dialogue about the reasonable accommodations that may be needed.
You will want to research and identify what might work to accommodate the employees situation? Try to keep the interactive process live and in real time. Only use email if it is the only way to make the conversations happen. When asked for a reasonable accommodation it is appropriate to say: letâ��s get documentation from your physician, figure out what might be appropriate in this process. You donâ��t have to give them exactly what they ask for, but you do have to provide a reasonable accommodation that fits the bill! The average costs of reasonable accommodation are about $500 many can me arranged at little or no cost.