The Three Take-Aways - #1 ADAAA


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This post is the second in a seven-week series. Check back each week for a new topic.

The number one concern I have when I begin discussing the ADAAA with an employer is the fact that many employers seem to believe that they do not need to accommodate an employee injury or potential disability in the workplace if the injury or disability is not in fact worker's compensation. I have never done a training where someone hasn't suggested that if it is not work comp, there is no accommodation. This leads me to my number one take-away for the ADAAA. YOU HAVE TO ASSESS ACCOMMODATIONS FOR ANY WORKER WHO MIGHT NEED THEM REGARDLESS OF WHETHER IT IS A WORK OR PERSONAL INJURY.

The reasonable accommodation discussion does not change because I, the employee, got hurt at home versus getting hurt at work. Workers' Compensation certainly does add an extra dimension to things, particularly when you are attempting to coordinate the requests and desires of the work comp carrier, as well as your own human resources needs. But it doesn't change the fact that accommodation has to be assessed in terms of what is and is not reasonable.

When someone needs accommodation, you need medical certification. Many employees will tell you that they have an issue, many employees will tell you they don't have an issue, and many employees have no idea if they have an issue.

If you work in a healthcare setting the temptation is of course to diagnose, which puts you in the place of being a provider as well as an employer and is almost certain to double your liability risks.

If an employee needs an accommodation in the workplace or you are initiating an accommodation discussion with that employee, one requirement should be medical certification of the nature of the disability. It is not complicated, it is not overwhelming and you don't want a lot of detail, but you do want to know that the disability does in fact exist and if the physician has placed any medical restrictions on the employee. That is the basis for your accommodation discussion.

You have to document the reasonable accommodation discussion. The interactive discussion is a critical component of complying with the ADAAA. Failure to document that you have had a discussion, and why the alternatives you discussed make the business case for why certain accommodations are not reasonable (No, I am sorry I do not have any stress free positions available), will leave you open to liability challenges. Even though you may have done the right thing, having done the right thing and being able to prove you did the right thing are two different issues!

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DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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