WHO’S ON FIRST? A LESSON IN THE COST OF PASSING THE BUCK

February 22, 2016

Author:  Bobbi K. Dominick

Let’s say you are a manager in a large company.  An employee comes to you and asks for a parking space close to the building because her disability makes it difficult for her to walk all the way from the bus station.  What do you do?  You pass the request on to HR and then you may forget about it. 

It looks like that is exactly what a manager did at the U.S. Department of Housing and Urban Development (HUD), and because nothing was ever done to examine potential accommodations and engage in the interactive process required by the Americans with Disabilities Act (ADA) regulations, HUD paid the employee over $900,000 at the end of January 2016 to settle the claim.  The large settlement is in the top four in terms of dollar amount of all of the cases EEOC has settled recently.  This particular case was brought under the Rehabilitation Act, but the principles and analysis under the ADA, which applies to many Idaho employers, is the same.  In fact, the EEOC policy on reasonable accommodation indicates that their procedures fully comply with the requirements of the Rehabilitation Act. 

The case is a sad tale of no one taking responsibility for responding appropriately to the employee’s requests.  There were multiple requests for accommodations, including improving access to equipment, the parking space, and even providing a telework option so the employee could work from home.  For 18 months, the requests were ignored by both the manager and HR.  There was evidence that there was a strained relationship between the manager and the employee, and that the manager simply passed the requests along to HR without responding.  But this does not excuse the failure to engage in an interactive process. 

INSIGHTS FOR MANAGERS

Below is a step-by-step process for what a manager should do after receiving a request for accommodation.

  • When an employee requests an accommodation and you don’t know what the disability is, ask for more information about what the limitations are, and how the requested accommodation will allow the employee to perform his/her job functions.
  • Assure the employee that you will address the request promptly.
  • If needed, consult with HR about whether the accommodation requested is reasonable, and how it will be implemented.
  • If a different accommodation is going to be provided, talk with the employee about why the different accommodation will allow the employee to perform the job, and why it is the accommodation that was chosen.
  • Document the process.
  • Complete the process promptly!
  • Check back with the employee to make sure the accommodation is working.

    • INSIGHTS FOR EMPLOYERS

  • Train managers on how to receive accommodation requests, and how to engage in the interactive discussion about accommodations.
  • Institute processes for documenting requests for accommodation, the interactive process that takes place, and the eventual accommodation that was provided.  If any requested accommodations were denied, employers should document the reasons why they were denied and what alternatives were provided.
  • Institute a process for following up 30-60 days after an accommodation to make sure that the accommodation is effective.

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    Please contact a Gjording Fouser lawyer at 208.336.9777 if you would like any additional information about this topic or any other employment issues facing your company.