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Dentists Should Be Prepared When an Employee Seeks A Disability Accommodation

June 21, 2019 2728

Reasonable Accommodation Interactive Process

Illnesses and disabilities are sometimes unavoidable in the workplace, and with these issues come tough decisions for employers. CDA Practice Support has received numerous calls about the law covering employee disabilities and the reasonable accommodation interactive process for employees and employers in the dental practice.

According to the employment website Monster.com, both employers and employees have a stake in this issue and opinions may vary. Employers offer jobs to people who they believe are qualified and can perform the essential and non-essential duties of the position. An employee who has a disability could seek accommodations to help with some aspect of the job demands. Scheduling, physical space adaptations, the use of interpreters or personal-care attendants, and performing the work differently are examples, according to Monster.

A determination must be made, however, on whether a requested accommodation is reasonable, and will allow an employee to enjoy an equal employment opportunity. Reasonable accommodation must be provided to a qualified individual unless the employer can demonstrate that the accommodation would pose an undue hardship.

Sue Ann Van Dermyden of Van Dermyden Maddux Law Corporation recommends dentists proceed with caution when dealing with this area of employment.

The interactive process involves a timely, good-faith conversation between both the employee and the employer to determine if the employee can return to work subsequent to an occupational or non-occupational injury, disease or disorder, or if the employee has a disability but can perform the essential functions of the job with reasonable accommodation. Both parties have an obligation to collaborate and participate in the process. It is important as an employer to show, with documentation, that the interactive process never ceased. If an employee should impede the process, or stop communication altogether, attempt at communication through phone calls and written communication – using overnight carrier, if necessary, should be clearly documented.

Van Dermyden said dentists should know what laws apply to their practice based on the number of employees they have. In the state of California, employers with five or more employees must comply with the Fair Employment and Housing Act (FEHA). Employers with 15 or more employees must also comply with the Americans with Disabilities Act (ADA). Both laws contain a disability provision that requires an interactive process between the employer and employee to determine if an accommodation is reasonable or would instead constitute an undue hardship. A leave of absence can, in some circumstances, be considered a reasonable accommodation.

Employers with 50 or more employees must comply with the federal Family and Medical Leave Act (FMLA)/California Family Rights Act (CFRA), which provide overlapping, as well as separate leaves. They provide an employee with an unpaid leave of absence of up to 12 weeks for specified reasons, such as a serious health condition of the employee or to care for a spouse, child or parent with a serious health condition. California law also requires employers to provide mandatory paid sick leave, effective July 1, 2015.

Requests for a leave of absence or reduced work hours, or an absence of three days or more, are red flag moments when employers must proceed appropriately or things may go sideways, said Van Dermyden.

“These situations are often fraught with the most peril because it is encompassed by so many things — workers’ compensation, disability law, family medical leave laws, internal processes — it’s all there,” Van Dermyden said.

Holding an employee’s job open while they are on leave is largely dependent on whether the leave would be medically necessary (as determined by medical certification of a disability by a health care provider), effective in getting an employee back to work and does not cause an undue hardship on the employer. Dentists should get medical certification from a health care provider that clearly indicates that the individual is disabled, meaning, has a physical or mental impairment that limits a major life activity triggering the interactive process to begin discussions with the employee to determine if the requested accommodation will be effective in enabling the employee to perform the essential functions of the job or creates an undue hardship for the employer.

When analyzing a requested leave of absence as a reasonable accommodation it is important for the employer to consider if the leave is likely to be effective in allowing the employee to return to work at the end of the leave. The California Code of Regulations (2 CCR § 11068) states "Paid or unpaid leaves of absence. When the employee cannot presently perform the essential functions of the job, or otherwise needs time away from the job for treatment and recovery, holding a job open for an employee on a leave of absence or extending a leave provided by the CFRA, the FMLA, other leave laws, or an employer’s leave plan may be a reasonable accommodation provided that the leave is likely to be effective in allowing the employee to return to work at the end of the leave, with or without further reasonable accommodation, and does not create an undue hardship for the employer. When an employee can work with a reasonable accommodation other than a leave of absence, an employer may not require that the employee take a leave of absence. An employer, however, is not required to provide an indefinite leave of absence as a reasonable accommodation.” In these instances, there are many factors to be analyzed. Those factors being whether it is unduly costly, extensive, or substantial to a particular employer, or would fundamentally alter the nature of the operation of business, considering:

  • Overall size of budget, employees, facility.
  • Type of operation, establishment, structure of workforce.
  • Nature and cost of accommodation.
  • Assistance available from agencies, tax incentives.

“The dentists might say, ‘I can’t accommodate that because it would cost me X amount of dollars,’” Van Dermyden said. “You may need to hire someone on a part-time basis. Do an analysis of your finances and put it all in writing.” If a particular accommodation poses an undue hardship, you must provide an alternate accommodation if one is available, unless it causes an undue hardship. Failure to reasonably accommodate an employee is unlawful, and an employee may be able to recover damages unless the employer can prove undue hardship as defined by the law. An employee is also entitled to bring a separate claim for failure to engage in the interactive process.

No law states that an employer must lower standards of a job. Accurate job descriptions listing the essential and marginal functions in each employees position is vital – especially when reasonable accommodation discussions could occur. Job descriptions should be reviewed annually or with each new hire and adjusted as the practice grows and job functions change. Essential functions of a job are non-negotiable in the reasonable accommodation process. In assessing requested accommodations, an employer need not remove an essential function of an employee’s position (as opposed to marginal functions), Van Dermyden said.

As part of the reasonable accommodation process, it is often helpful to analyze the employee’s limitations or restrictions, as set forth in the medical certification, in a side-by-side comparison with the essential functions of the employee’s position, as set forth in a job description.

The dialogue should occur only between the employer and employee with directions for the employee to get information from their health care provider in a reasonably timely manner. The employer should not communicate with the health care provider directly unless the employee gives permission to do so, according to Van Dermyden.

“Even then, I don’t recommend that because there are HIPAA and privacy laws and California has very strict privacy laws for employees,” Van Dermyden said.

There are no “magic numbers” when it relates to the timeliness of the interactive process. Depending on the circumstances, a quick turnaround time for documentation could be warranted. In all instances, it should include the employee providing the requested documentation to the medical provider and back to the employer in a timely manner. If reasonable accommodation cannot be made, dentists should identify whether there are other available positions for which the employee is qualified that meets his/her restrictions. If reasonable accommodation cannot be made, there is undue hardship to the employer and an alternative position is not available, dentists should contact an attorney to discuss next steps. “You have to know when you need to ask for help. Dentists have several resources available to them in terms of human resources companies and legal counsel,” Van Dermyden said.

CDA members also can contact Practice Support for guidance and initial advice.

Steps to take when a dentist learns of an employee disability

  1. Determine which laws/policies apply.
    1. Disability – FEHA (5 employees or more); ADA (15 employees or more).
    2. Leave laws – FMLA and CFRA (50 or more employees).
    3. Policies (paid sick leave; kin care; medical leaves; personal leaves).
  2. Identify whether the disability is the result of a work-related injury.
    1. If yes, contact workers’ compensation carrier. Determine if it also qualifies under disabilities laws (FEHA, ADA) and/or leave laws (FMLA/CFRA) and internal policies.
    2. If no, determine if it qualifies under disabilities laws (FEHA, ADA) and/or leave laws (FMLA/CFRA) and internal policies.
  3. If a disability:
    1. Request medical certification or Reasonable Accommodation Questionnaire, completed by employee’s healthcare provided
    2. Begin interactive process with employee and health care provider (via employee).
      1. Identify essential job functions.
      2. Ascertain precise job-related limitations from medical certification or questionnaire. If the documentation or limitations are unclear, request further clarification from the heath care provider.
      3. Compare essential job functions with limitations to determine if employee can perform essential functions of the job, with reasonable accommodations.
      4. Identify possible accommodations (identified by employer, employee and health care provider, such as modified duties; equipment for physical limitations; job restructuring; part-time or modified schedule; unpaid extension of paid or unpaid leave; modifying employer policy; working from home).
      5. Analyze reasonableness of possible accommodations,
        • Is it medically necessary?
        • If an employee is on leave, is it effective in returning the employee to work?
        • Will it enable the employee to perform the job without endangering the health or safety of the employee or others in the workplace?
        • If not reasonable, is there an alternative accommodation that will enable the employee to perform the essential functions of the job?
        • Can the employer prove that providing the accommodation will pose an undue hardship?
      6. Implement the most appropriate accommodation without imposing an undue hardship.
      7. Document the process.
    3. If reasonable accommodation cannot be made, identify whether there are available positions for which the employee is qualified that meets his/her restrictions
  4. If reasonable accommodation cannot be made or creates undue hardship to employer, and alternative position not available, contact attorney to discuss next steps.