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Pull up a chair: You must have ADA accommodations talk with disabled employees

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in Discrimination and Harassment,Employment Law,FMLA Guidelines,Human Resources

Here’s one of the most common mistakes employers make when managing employees with disabilities. They know that generally, the employer gets to choose the reasonable accommodation. But what they don’t realize is that simply unilaterally declaring an accommodation won’t pass muster under the ADA.

You must engage in a truly interactive process—with the employee—to be in compliance with the letter and spirit of the law.

Make sure you talk with disabled employees about accommodations. Document those conversations and list all the accommodations the employee and you suggested.

Recent case: Kathleen Maley was a radiologist for EMH Regional Health Care for 26 years until she was fired in 2007 shortly after returning from FMLA leave.

She had been off because she was battling depression and migraine headaches. Her depression was better, but she continued to have migraines even while at work.

Then Maley began to be written up for allegedly sleeping on the job. She claimed she wasn’t sleeping, but instead was closing her eyes to cut some of the light stimulus that sometimes triggered the headaches. EMH Regional told her she had to either go home when her migraines flared or stay at work—with her eyes open.

The next time Maley was caught with her eyes shut, she was fired.

She sued, alleging she had been denied a reasonable accommodation and that her employer had refused to discuss potential accommodations, such as closing her eyes.

EMH Regional countered that it didn’t believe Maley was really disabled. But the court rejected that claim; Maley’s doctors had testified that her migraines often made it impossible to do everyday things like reading, walking, exercising or driving.

Next, EMH Regional argued that it had offered Maley a reasonable accommodation—she could have gone home every time a headache began, using FMLA leave or sick days.

The court agreed that might have been a reasonable accommodation—but that the flawed accommodations process warranted a closer look. Now a jury will decide whether EMH Regional refused to engage in the interactive accommodations process and then fired Maley because of the effects of her disability. (Maley v. EMH Regional Health Care Center, No. 1:09-CV-896, ND OH, 2010)

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