How should an employer handle employee requests for accommodation—whether for the short or long term? The response may involve a return-to-work plan, service animals, modified duty or something else entirely. The employer wants to do the right thing, but what does that mean, and what is the employer's obligation under the law?
Linda C. Batiste, J.D., principal consultant for the Job Accommodation Network (JAN), offered tools, techniques and resources on handling accommodation requests. JAN is a federally funded service of the U.S. Department of Labor's Office of Disability Employment Policy that offers confidential guidance at no charge.
She discussed the following scenarios during an Aug. 6 presentation at the Disability Management Employer Coalition Annual Conference in Fort Washington, Md.
Situation: A custodian was on leave under the Family and Medical Leave Act (FMLA) and received workers' compensation after he hurt his back on the job. He used an additional month of leave as an accommodation under the Americans with Disabilities Act (ADA) when his FMLA leave ended, then asked to return to work part time and on light duty with the intent to work up to full-time status. The employer is concerned the employee will re-injure himself and questions how difficult it might be to accommodate the employee. The employer is considering denying the request until the employee is free of work restrictions.
"A return-to-work program
is a good way to ease someone back to work in a safe way," said Batiste, who suggested creating a bank of light-duty tasks for such occasions. "The ADA doesn't require you to do that, but it can be a best process."
Batiste also offered the following suggestions:
- Get the information you need to make an informed decision, and don't make assumptions.
"You want to do your homework and see if any of the ideas we have [on the JAN website] would be helpful," she said.
Service Animal Request
Situation: An insurance agent with anxiety and panic disorder asked to bring her emotional-support animal, a small dog, to work with her.
These types of requests create a lot of confusion, Batiste said. The ADA definition of service animals does not cover emotional-service animals in the workplace
, and employers do not have to provide any accommodation that poses an undue hardship on the employer.
"From a practical standpoint," JAN notes on its website, "a request to bring a service animal to work is really a request for an employer to modify its no-animals-in-the-workplace policy."
If your organization already allows animals, it's not an issue, Batiste said.
Employers that have a no-animal policy should consider modifying the policy on a case-by-case basis, according to JAN, "to allow an employee to use a service animal at work, unless doing so would result in an undue hardship."
There may be some areas of an organization where animals would be problematic. A surgeon who has an emotional-service animal would not be able to have the animal accompany him or her into surgery, for example.
[SHRM members-only policy: ADA Reasonable Accommodation Policy—Service Animals
Batiste suggested the following techniques for handling a service-animal request:
- Treat the request for a service or emotional-support animal the same as any accommodation request.
- The employer may ask for medical documentation if the disability and requested accommodation are not already verified or obvious.
- After getting documentation, ask if the animal has been trained to be in a work environment, and if so, by whom?
- Consider a demonstration or trial period to see how the animal behaves.
"And if [the animal] is quiet and seems to calm the person down, maybe you want to approve" the request. "Go through the process and see if it's workable," Batiste suggested.
JAN notes on its website that employers who use a trial process often have a written agreement stating the length of the trial period and what may cause that trial to end prematurely.
Situation: A sales representative had to travel for work to meet with customers. He requested an upgrade on flights longer than three hours because a circulatory condition requires that he stretch his legs. His request was approved, but the employer realized the next time a long trip came up that the employee's medical documentation did not indicate how long the employee would need the accommodation.
Batiste suggested the following for dealing with ongoing accommodations:
"You cannot make the person go back to the doctor and get [documentation for] the same accommodation year after year," Batiste said. The employer cannot make an employee with a hearing impairment who needs an interpreter to do his or her job, for example, supply documentation every time the worker requests the accommodation.
However, the employer can choose an alternate accommodation if it is equally effective. An employee who relies on an interpreter could instead be asked to use technology that would accomplish the same goal. If the employee resists, ask him or her to try the other option before rejecting it outright, Batiste said.
Situation: A supervisor told HR that she has been informally accommodating a long-time employee who has multiple sclerosis. The supervisor ran out of ideas for accommodating the employee and has been doing most of the employee's essential functions. The supervisor turned to HR when she was no longer able to keep up with her own work.
The supervisor shouldn't simply tell the employee that he or she now has to do the job, Batiste said. Instead:
- Determine what the job is and if there's an accommodation that would allow the employee to perform it.
- Consider reassigning the employee.
It's important, Batiste said, to have a written accommodation policy, educate all supervisors and managers about it, and have a method for tracking informal accommodations.
She cautioned employers not to adopt a pattern of accommodating only certain employees.
"Don't just do it for women, or for people with mobility problems," for example. "If you go beyond the ADA, be sure you don't do it in a discriminatory manner."