Managing medical issues in the workplace can get complicated

Dean Harris

In my role advising and representing employers, the situation about which employers inquire most is the interactive process required in determining how to reasonably accommodate disabled employees. 

No situation is the same, and my advice varies based on the facts. But some or all of the following factors are present in every discussion:

The employer confronts the employee about inadequate attendance or work performance.

The employee responds by requesting accommodation for a medical condition the employer might or might not previously have known about.

The employer asks what accomodation the employee seeks as well as for medical documentation to support the request.

The employee’s manager is frustrated by what the manager perceives as the employee’s attempt to avoid consequences for poor performance or unwillingness to attend to work.

The employee supplies a brief note supplying little or no medical information and summary statement from a doctor the employee needs accommodation.

The situation drags on as, depending on whose perspective is accepted. The employee is uncooperative and won’t supply information. The employee is frustrated by a process the employee doesn’t understand.

The business owner or HR manager bangs his or her head on a desk and calls me.

If I had a dollar for every time I counseled an employer on some version of that scenario, I’d be sitting on a warm beach somewhere. 

So how should an employer approach potential Americans with Disabilities Act (ADA) accommodation situations?

Employers must remain aware of a couple of preliminary principles. On one hand, employers are responsible for providing accommodations to disabled employees to assist them in performing the essential functions of their jobs — if the accommodations are reasonable and don’t pose an undue hardship to employers. It’s also employers’ responsibility to determine whether or not an accommodation exists and what accommodation is reasonable. An employer isn’t bound to provide the accommodation the employee requires so long as the accommodation it provides is reasonable.

On the other hand, employees are required to provide enough information about their health condition and the precise limitations those conditions cause so employers know they’re entitled to accommodations and how to reasonably accommodate them. Employers need enough information to determine accommodation is both required and reasonable. 

This exchange of information is known as the interactive process and assumes employers and employees engage in cooperative discussions to substantiate the need for and nature of an accommodation. A recent Tenth Circuit case — Dansie v. Union Pacific Railroad Co. — provided guidelines for engaging in the interactive process.

Dansie holds that the ADA requires a “good faith back-and-forth process between the employer and the employee with the goal of identifying the employee’s precise limitations and attempting to find a reasonable accommodation for those limitations.”  While a reasonable accommodation might not exist in a given situation, the employer must “work with the employee to try to find one.” The ADA doesn’t anticipate or allow a “take it or leave it” offer of accommodation from the employer or demand from the employee. 

I often see ADA accommodation processes break down because a manager believes from the outset there’s no way to accommodate a particular situation. Or an employee demands a particular accommodation or supplies a doctor’s letter recommending a specific accommodation and won’t consider the employer’s alternatives.

Dansie also holds that when other accommodations aren’t reasonable or present an undue burden to the employer, the employer must consider whether or not it can reassign the employee to a vacant position for which the employee is qualified — a measure the U.S. Equal Employment Opportunity Commission and multiple courts have tagged as “the accommodation of last resort.”  Employers aren’t required to create a new job, promote an employee or move an employee to a position for which the employee isn’t qualified. An employer can’t require an employee to search for their own vacant position or compete with other applicants for a vacant position if the employee is qualified to perform the position. 

Situations requiring accommodation of health conditions are often emotionally charged. Every accommodation situation will differ from another. There’s no magic template. The employer’s obligation to reasonably accommodate disabilities will depend on the specific circumstances of each situation. Throw in the fact medical issues also could involve questions of eligibility for Family and Medical Leave Act or workers’ compensation claims, and managing medical issues in the workplace can become complicated.

Dansie touches on a final question I’m frequently asked. Is an employer required to rescind legitimate disciplinary or remedial actions the employer takes before it knows of the need for accommodation? The simple answer is “no,” but a caveat is in order. Many accommodation requests occur after performance issues come to light. An employer might be tempted to view the request as an attempt to avoid responsibility. But that’s not necessarily the case. An employee could be reluctant to share private medical matters until circumstances require it. Don’t let skepticism derail the interactive process.

Managing medical issues in the workplace is a fact-specific process with important consequences for employers and employees. The Employers Council offers resources to members to assist in this process.