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Approach employee directly to discuss accommodations

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in Employment Law,HR Management,Human Resources

The ADA requires employers to make reasonable accommodations for disabled applicants and employees. And those accommodations must be based on an agreement between the disabled individual and the employer, using an “interactive process.”

That means employers need to talk directly to employees—to explore what can be done to allow the disabled person to perform the essential functions of the job.

Sometimes, however, employees will use surrogates to help arrange accommodations. Although that may not be the preferred way, it is legal (and not an indication of bad faith) so long as the employee—not the employer—insists on managing the accommodations request through third parties.

Recent case: Michael Kleiber worked for Honda of America until he had a serious accident while performing yard work at his parents’ home. The accident left him with brain injuries and unable to walk on uneven surfaces.

After extensive treatment and physical therapy, Kleiber got help from a state vocational rehabilitation office. He asked his counselor to work with Honda to help him get back to work.

Honda ultimately concluded that Kleiber’s disability prevented him from performing any of the jobs at its facility. Kleiber sued, alleging Honda had not engaged in good faith in an interactive accommodation effort. Kleiber cited many reasons, one being that HR personnel never spoke directly to him.

The court dismissed the case. Although it said it is preferable to speak directly with disabled employees, in this case Honda honored what Kleiber wanted: indirect communication through a vocational counselor. Honda couldn’t have acted in bad faith by honoring Kleiber’s request. (Kleiber v. Honda of America, No. 06-3490, 6th Cir., 2007)  

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