The reasonable-accommodation process can seem endless, requiring “patience and ongoing attention,” according to Peter Petesch, an attorney at Littler in Washington, D.C.
“Conditions and job functions both change over time, and accommodations need to be revisited to determine whether they are still effective in helping the individual perform the essential functions of the job,” he told SHRM Online. “A client once compared it to the circus act of keeping the plates spinning on the poles.”
‘Try, Try Again’
It isn’t just employers that are responsible for identifying reasonable accommodations. “Employers also need to instill a sense of responsibility with the employee, as well—to come forward with information on how the accommodation is working and on changing needs,” Petesch added. Reasonable accommodation requires “focused patience, creativity, ongoing attention to a moving target and use of outside resources. Going it alone makes little sense.”
Even if the organization and the employee think they’ve reached a dead end on possible accommodations, they may still need to keep trying, perhaps with the help of outside sources, such as the Job Accommodation Network.
With the interactive process for identifying a reasonable accommodation, “if the first thing doesn’t work, the employer does need to keep trying,” insisted David Fram, director of ADA [Americans with Disabilities Act] and EEO services at the Denver-based National Employment Law Institute.
Burton Fishman, an attorney at Fortney & Scott in Washington, D.C., agrees. Employers are “supposed to try, try again—period.”
Those with chronic or severe disabilities may “have a bad rap here,” he said. “They usually know what they can and cannot do better than the rest of us.”
In any event, “a record of your efforts at accommodation is the best defense,” Fishman reminded. “Record and list all your efforts at accommodations: the job adjustments, the absences, the reassignments. At some point, enough really is enough.”
Don’t assume someone with a severe disability will be more difficult to reasonably accommodate, he said. “The wheelchair-using accountant has a chronic disability but needs no accommodation. The insulin-taking systems analyst may never take a sick day.”
Also remember: It isn’t just severe or chronic disabilities that are covered by the ADA but all physical and mental impairments that substantially limit major life activities, as well as a record of a disability or being regarded as having a disability.
But when a person’s disability is long term, the company should remember that the need to consider reasonable accommodations is ongoing, said Jonathan Mook, an attorney at DiMuroGinsberg in Alexandria, Va. “Even if the employer has provided an accommodation for an employee with a chronic disability, that employee may experience additional problems and need further accommodations that an employer must consider. The duty to accommodate disabled employees under the ADA is a never-ending process.”
The accommodation duty may go hand in hand with the duty to provide unpaid leave to someone with a serious health condition under the Family and Medical Leave Act if the employee is eligible for FMLA leave and the worksite is covered by the law. Under the FMLA, an employee with a serious health condition must have worked at least 1,250 hours for 12 months to be covered; by contrast, the ADA allows coverage for new and part-time employees with disabilities and even job applicants with disabilities. The threshold for FMLA coverage is 50 employees at one site or within 75 miles of the site; for the employment provisions of the ADA, it’s at least 15 people working for an employer.
“The FMLA specifically allows for intermittent leave, which may be unpredictable and taken in short increments,” Mook said. “Accordingly, where an employee with a chronic disability/serious health condition experiences episodic flare-ups, an employer may not be required to accommodate unpredictable absences of the employee under the ADA but may need to provide intermittent FMLA leave for up to 12 weeks. Obviously, this can be very disruptive for an employer’s operations, particularly where the FMLA leave is taken, for example, in increments of one hour.”
Mook explained further that unlike with the FMLA, an employer doesn’t have to provide unpredictable leave as an ADA accommodation, because regular, predictable attendance is an essential function of most jobs. “Exceptions may arise, however,” he cautioned. “It is not an absolute rule under the ADA.”
Even with someone whose attendance is unpredictable, the organization would be wise to “explore potential accommodations with the employee before taking any job action.” And “if the employee is entitled to intermittent FMLA leave, that leave must be granted, and the employer could take a job action only after the employee’s FMLA entitlement has expired,” he noted. However, more leave for a definite period—as distinct from indefinite or unpredictable leave—may be required by the ADA.
So, keeping the FMLA and ADA plates spinning on top of the poles takes some effort and “patience on the part of an employer,” Mook noted, “because the accommodation issues will not go away.”
Allen Smith, J.D., is the manager of workplace law content for SHRM. Follow him @SHRMlegaleditor.
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