Issue: How to follow Americans with Disabilities Act rules requiring an "interactive process" with disabled employees.
Benefit: You can reject an accommodation request if the employee won't cooperate in the interactive process.
Action: Feel free to use tests to plan appropriate accommodations. Set consequences if the employee won't work with you.
When dealing with a disabled employee, you must participate in a give-and-take discussion to figure out how to reasonably accommodate the disability. The Americans with Disabilities Act (ADA) requires this "interactive process."
One tool you can use: job-related testing, which can help find a suitable position that fits the disability. A recent court ruling says disabled employees must participate in this aspect of the interactive process. Employees who refuse to participate will write their own pink slip.
Recent case: Clarence Allen, a phone company technician, thought his disability could be accommodated simply by not climbing poles and ladders. But he still wanted to work as a field technician. His employer considered two independent medical opinions in concluding that Allen could work only at desk jobs. Allen disagreed, but the company refused to send him into the field.
The company's interactive process required Allen to take a typing test to see which positions matched his skills. When he didn't show up for the test, he lost all further rights to additional accommodations. The company then fired him.
Allen sued, but the court tossed out his case. Its reasoning? Because Allen failed to cooperate in the job-search process, he forfeited his rights under ADA. (Allen v. Pacific Bell, No. 02-55721, 9th Cir., 2003)
- Retaliation can stick even if underlying complaint doesn't
- Try to accommodate employee's religion-- but don't automatically agree if it's a burden
- Union contract can keep you out of federal court
- Beware ill-chosen words, which--all by themselves--can sometimes launch lawsuits
- DOJ grant to fight employment bias along Mexican border