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ADA accommodation may not be possible, but explore the options

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in Employment Law,Human Resources

Under the ADA and the Min­ne­­­sota Human Rights Act (MHRA), disabled workers are entitled to reasonable accommodations. Deciding what’s reasonable requires an interactive process in which both employer and employee discuss options that allow the employee to perform essen­­tial job functions. The employer then can choose which accommodation it prefers.

If no option is reasonable, it’s legal to terminate the employee.

Often, the employee offers the first suggested accommodation. Employers that simply reject that suggestion and don’t offer some other solution (or at least discuss the possibility of other options) may find themselves on the receiving end of a lawsuit alleging they failed to engage in the interactive process. Don’t let that happen!

Always meet with the employee to discuss accommodation options after researching the possibilities.

Recent case: Kimberly worked for the Benton County Sheriff’s Office as a sergeant and detention officer. In 2002, she was diagnosed with multiple sclerosis, a neurological disorder characterized by numbness, sensory problems, headaches and widespread pain. Symptoms often flare up and can grow worse over time.

Kimberly told a friend in management about her condition and word soon got around. Still, she continued to do her job and got good reviews. She sometimes arranged to work in the jail’s control room when her symptoms flared up. That allowed her to monitor cameras and do paperwork instead of interacting directly with inmates.

After a few years of this self-made accommodation, management sent out a memo clearly stating that sergeants were expected to remain at their regular posts and not work in the control room. That’s when Kimberly finally made a formal accommodations request. She asked to be assigned to the control room when her symptoms grew worse. Man­­age­­ment rejected the request and made no other suggestions on how to accommodate her flare-ups.

From then on, Kimberly regularly missed work. She used up her FMLA and other accumulated leave, as well as leave donated from co-workers. When that pot, too, was empty, the sheriff’s department terminated her.

Kimberly sued, alleging among other claims, that the department hadn’t engaged in the interactive accommodations process.

The court said her case could go to trial. It reasoned that by not bothering to explore other possible accommodations—or indeed even whether the previous self-created one was working—the department may not have acted in good faith. A jury will decide if that was the case. (Miller v. Benton County, et al., No. 11-2070, DC MN, 2013)

Final note: It costs nothing to discuss reasonable accommodations. Do it even if you are reasonably sure that no accommodation is possible. Otherwise, you risk losing a lawsuit claiming you didn’t engage in the interactive accommodations process.

Start by looking at the employee’s suggestions for possible accommodations. If one is simple and easy, why not approve it on a trial basis? If the suggestion just isn’t realistic, look for other solutions. At the same time, you should assess whether she’s entitled to an accommodation at all.

And remember that you don’t have to provide the accommodation your employee prefers, but the one you think best.

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