Attorney Lawrence Postol, a partner in the office of Seyfarth Shaw, LLP offered his Americans with Disabilities Act (ADA) tips at SHRMs Employment Law and Legislative Conference.
Employers still have some cards to play in the ADA game. Postol suggests employers take note of the following:
1. Employers Still Determine Essential Duties
The employer still gets to determine the essential duties of the job, says Postol. Accurate written job descriptions with minimum qualification requirements can be very helpful. For example: if the job description says that a hotel worker is to clean eight beds a day and if that is accurate (the other workers do that) then that is the standard. It's OK to request a light vacuum as an accommodation, but not seven beds instead of eight, says Postol.
Note: Be sure to compare job descriptions to the work the current workforce does - you can be sure the employee's lawyer will do that, Pistol warns!
2. Regular Attendance at Work is Required
Document the need for face-to-face interaction with supervisor, coworkers, and customers. Since no good deed goes unpunished, be careful in allowing telecommuting on a temporary basis. Short-term accommodation does not mean the same thing is required in the long term, but it is risky. Make it clear that someone can cover for a few weeks, but not forever.
3. You Are Not Required to Change Essential Functions
Reasonable accommodation rules do not require the employer to change the essential functions of the job, only nonessential duties must be reassigned. In addition: Employers need not create jobs and it is also permissible for an employer to reserve light-duty jobs for those with work-related disabilities.
4. Safety Still Counts
A direct threat, that is, a significant risk to health and safety of self or others still counts. In making this determination, the employer must rely on a medical opinion that is based on the current state of medical science, and the worker's doctor can challenge (and will challenge) that opinion. Write to the physician requesting certification following ADA language says Postol. Ask the physician to certify that there is no substantial risk of harm OR no significant risk for substantial harm. This tends to switch the doctor from patient mode to malpractice mode.
5. The Employee Must Cooperate with the Interactive Process
Employee must answer questions, give requested medical information, and attend the independent medical evaluation.
6. Employers Can Enforce Work Rules
If the employer honestly believed that there was a violation of a work rule, which is a defense, even if hindsight proves the employer was mistaken, and maybe even if a disability caused the violation.