Policy, process and undue hardship: what you need to know about accommodation

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What’s step one in a disability claim? Are all your managers following the same procedure? If you don’t know the answers to these questions your company could end up facing some serious charges.

Information gathering

When an employee first approaches HR or their manager about requiring accommodations it’s key to start gathering information, lawyer Marty Rabinovitch, from Devry Smith Frank, said. Find out what restrictions the employee has and the nature of the disability. While you can’t ask exactly what the diagnosis is, employers are entitled to enough information to find appropriate accommodation.

For example, in the case of a back injury, the employer is not entitled to know the specific diagnosis, such as a herniated disc, but would be entitled to know the employee has hurt his back and is unable to lift anything bigger than 50 grams.

“This information gathering stage is important so an employer can determine what sort of accommodation the employee really needs,” Rabinovitch said. “By getting this information and discussing it with an employee, hopefully the employer can offer accommodation the employee is happy with and the employment relationship can continue.”

In some cases the employer may want to ask the employee for permission to talk to their doctor to get specific details around the sort of tasks employees can and cannot complete.

Problem solving

One of the most common errors Rabinovitch sees is employers simply approving or rejecting an employee’s accommodation suggestions. The best employers take the time to consider all the accommodation options, instead of simply responding to other parties’ ideas.

“At the end of the day the employer is the one that has the obligation, once they learn of an employee’s disability, to take active steps to suggest or come up with accommodation,” Rabinovitch said. “They should be coming back with a proposal of their own, or if there really is no other proposal then explain why.”

The employee has a duty to cooperate with the accommodation process, and if an employer’s accommodation suggestion is reasonable the employee may have a responsibility to accept it.

How can you make sure you have a robust policy and comprehensive process? See page 2

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