5 Terms Every Employer Should Know About Disability Law
By: Washington State Employment Law Lawyer Elizabeth L. Van Moppes
The world of workforce management includes a multitude of “terms of art;” These are words or phrases that have taken on special meaning to human resources professionals and their counsel. Those terms related to disability discrimination law are particularly distinctive. Even those who are well-versed in other areas of human resources law, often find it difficult to understand the meaning of some of the more commonly-used words and phrases involved in this area of employee management. Unfortunately, supervisors, HR personnel, and employers who do not understand the meaning of the following five key phrases may fail to comply with the strict rules and regulations of state and federal disability laws. Here is a quick guide to help you understand the jargon and achieve compliance.
1. Essential Job Functions
Essential job functions are the fundamental duties of the position. A job duty may be “essential” if:
- It is the reason the position exists. For example, a receptionist position exists so the business can have someone greet guests and answer phones, among other duties.
- There are a limited number of employees available to cover those job duties.
- The job duty is highly specialized and the employee may have been hired because of an expertise of ability to perform a particular function.
You can use numerous tools to determine whether a job function is essential, including good faith judgment, the percentage of the employee’s time that is devoted to the task, and the importance given to that task in performance evaluations.
I advise all of my clients to have current, accurate, and detailed job descriptions. Preferably, the employee him or herself has contributed to the job description and signed off on its accuracy on a regular basis. This is one thing that can be done in advance that will prove fruitful should any concerns about disability accommodation arise.
2. Interactive Process
Employers and employees both often fail to fully understand the meaning and importance of the term “interactive process.” The technical definition of the interactive process is the timely, good faith communication between an employer and an employee to explore whether a disabled employee needs a reasonable accommodation to allow the employee to effectively perform the essential functions of the job and, if so, to explore how the employer can reasonably accommodate that employee.
In plain English, this means a successful interactive process is:
- Interactive. And to be “interactive” it must be cooperative or collaborative. So, perhaps obviously, both sides must participate in the process. And both sides must participate with each other. Having a meaningful conversation among key internal managers without the employee’s involvement is not interactive.
- Transparent and open. It is unlikely that the employee and manager are truly interactive if one side or another is withholding important information.
- Mutual. One side cannot break down or stonewall the communication process. This does not mean, however, that an employer is “off the hook” if the employee is difficult to communicate with. Persistence is important. It is also important that you are honest and precise about the information you need from the employee to allow you to do your job. In short, do your part to communicate clearly and honestly and always keep the lines of communication open.
- Individual. Even if you have gone through the process numerous times with that same employee, you must approach each process individually, with a reason and good faith. If it is a medical condition you have seen before with another employee, remember that this individual may have restrictions or job requirements that are different. Be creative and approach each accommodation request and analyze it with an open mind.
- Mindful. Keep in mind that, at its heart, the interactive process requires employers and employees to comply not only with the letter of the law but the spirit of the law.
3. Individual Assessment
A pillar of disability accommodation law is that each and every accommodation is unique and must be individually assessed. The primary concern here is that each factual scenario is unique and must be viewed independently and analytically. Do not rely on the “this is how we always do it” approach without ensuring that you have looked at the individual’s unique and specific requests, their individual restrictions, the job’s essential functions, and the needs of the particular department. Keep in mind, also, that the secretarial position in one department may have vastly different needs than another, depending on the reporting structure. Also, remember that even if your sister had back surgery, this employee’s back surgery and subsequent needs for accommodation may be very different. People heal differently and have different complications. The doctor’s requirements for that employee trump your personal experiences. Which takes me to my next point…
4. Job Restrictions
Often an employer or supervisor will spend time and energy trying to understand an employee’s underlying medical condition or disability, even after receiving a doctor’s certification of the disability. Your focus should be on the nature of the restrictions, not the disability itself. There may be a need to inquire further into those restrictions but their cause should not be your focus.
That said, it may be appropriate for further inquiry into the circumstances related to the condition. For example, questions about the employee’s anxiety disorder are not as important as understanding the details of the accommodation requested. It is appropriate to ask for additional details about work restrictions: How long will it last? Are there side effects to the drug that is being taken? Are there specific hours when the employee cannot work? Can the employee work only part-time?
5. Reasonable Accommodation
A reasonable accommodation is a modification or adjustment to a job that is effective in enabling the employee to perform the essential functions of the job he or she holds. The key words in this definition are “reasonable” and “effective” – distinct but related concepts. An accommodation must first and foremost be reasonable. Reasonableness is subjective and, therefore, hard to define. Nevertheless, you should perform a diligent analysis that is creative but also logical and fair. Considerations might be cost relative to the employer’s size and profitability, impact on the efficiency of the department or business, and duration. A reasonable accommodation is just and does not create an undue burden on the employer.
In addition to reasonable, though, an accommodation must be effective. Just because an accommodation is reasonable, does not necessarily mean it will be effective in allowing the employee to perform the job in question. Consider, for example, an employer analyzing the feasibility of an employee’s request to buy an ergonomic chair. Though it might be a reasonable accommodation, it will obviously not be effective if the employee’s restrictions are related to a psychological disability. Unless the requested disability is geared toward providing the disabled employee an equal opportunity to do the job, it will likely not meet the “effective” test.
These concepts all work together. An employer is obligated to begin the interactive process with an employee as soon as it is aware that there may be a need for an accommodation. This process involves transparency and good faith. This is when information is exchanged so that the employer can determine whether the employee’s restriction can be matched against the essential job functions. The information acquired during this process allows an employer to make an individual assessment of the employee’s unique job restrictions to see whether a reasonable accommodation can be implemented so that the employee can continue to be an asset to his or her employer. Understanding these key phrases and the accommodation framework enable you to be more prepared to respond to and meet accommodation requests.
If you would like additional information about managing accommodation requests, please contact the Beresford Booth attorney with whom you work or Elizabeth Van Moppes directly.
Beresford Booth PLLC (425.329.8850), www.beresfordlaw.com
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