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Head off ADA complaints by proactively offering to discuss accommodations

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in HR Management,Human Resources

The ADA requires employers to engage in an interactive process to determine whether an applicant or employee is actually disabled and what, if any, accommodations are possible. But the law doesn’t expect employers to be clairvoyant. The obligation to accommodate isn’t triggered until an employee somehow reveals a disability.

Even so, smart employers have accommodations process plans in place before a need arises. They also keep careful track of how employees use the process.

Consider this example: An employee who has been off work on temporary disability leave says he’s ready to return. You are reluctant to allow him back because he’s taking prescription medications that could impair his mental or physical acuity. Since he says he’s ready to return to work with no restrictions, he doesn’t sound disabled. But your rules say no one taking prescription drugs can work around equipment. What do you do?

Your best bet is to invite him to discuss the matter with your HR office’s disability coordinator. That leaves the ball in his court. If he pursues the conversation, start the interactive process by asking for more information on his condition and any accommodation he might need. If he doesn’t follow up, he can’t say later that you refused to help.

Recent case: Chester Lively worked for PSI Energy until he had back surgery. He took a narcotic prescription to manage the pain, plus he depended on a spinal implant for pain relief. He said he was ready to work, but the company said he couldn’t do his job while taking the drugs. However, PSI did invite Lively to discuss his medical condition with the HR office. He declined and lost his job.

Lively sued, alleging the company refused to accommodate him by waiving the drug-free requirement. According to Lively’s doctors, the drugs didn’t cause any impairment. Lively said he never pursued the matter because he was certain the company wouldn’t waive the requirement.

The employer said it never knew Lively was claiming he was disabled and wanted an accommodation since he had a medical clearance and didn’t want to discuss his condition with the disability coordinator. The court dismissed his case, based in part on the employer’s offer and Lively’s refusal to cooperate. (Lively v. PSI Energy, No. 1:06-CV-1377, SD IN, 2007)

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