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Show good-faith ADA accommodation effort by documenting interaction with employee

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

Employers and disabled employees both have an obligation to act like adults when coming up with possible reasonable accommodations. Each side has to listen to the other and consider different viewpoints and potential accommodations. Neither party should walk away in a huff.

Be smart: Carefully track the accommodations process. Someday, a court may have to decide if you were properly engaged in the accommodations process. You can show that good faith by pinpointing where communications broke down and who walked away. Never let the court conclude you let the process wither.

Recent case: Robert Kacer has Type 1 diabetes, which requires careful regulation of his blood sugar, either by having insulin injections or eating food to raise the sugar level. He works for the U.S. Postal Service as an electronics technician.

The trouble began when Kacer refused to install computer cable. Kacer thought the task wasn’t in his job description. His supervisor and a union representative concluded that the task was one Kacer was supposed to perform.

That’s when Kacer said he needed to deal with his blood sugar. He went home and did not return to work for several weeks. Kacer was listed as absent without leave.

Meanwhile, he got a doctor to certify that he needed FMLA leave to stabilize his diabetes. He asked that post office records show he had been out on FMLA leave. His supervisor agreed.

Months later, Kacer discovered that he hadn’t been paid for the weeks he was off, presumably because his attendance records hadn’t been changed after all. Instead of bringing the problem to his supervisor’s attention, he filed an EEOC complaint alleging failure to accommodate his disability. He said the accommodation would have been allowing FMLA leave.

The court dismissed Kacer’s case. It noted that Kacer himself had dropped the ball. If he wanted to use FMLA leave as an accommodation of his disability, he should have told the post office that it hadn’t properly processed his request. That would have been part of the interactive accommodations process. But he never did. That meant it was he—not the post office—that refused to engage in the accommodations process. (Kacer v. Potter, No. 09-C-3752, ND IL, 2010)

Final note: It helps to centralize the accommodations process within HR. Designate one person to handle accommodations requests. He or she can then track each initial request, set up a schedule for exchanging information such as medical certifications and track possible accommodations.

Be sure to create a written record. Include all relevant contact information, such as the date of each conversation, plus a clear and succinct summary of what was said. Include action items after each contact, especially if you have asked the employee for more information. Then follow up to make sure the employee provides the information or certification he promised. Record any final decision on each accommodations suggestion, explaining why the idea was rejected or how it will be implemented.

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