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 dental practice.
Both employers and employees have a stake in the interactive process 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 aspects of the job demands. Depending upon the circumstances, an employer may be asked to make accommodations in scheduling, physical space adaptations, use of interpreters or personal-care attendants or allow the employee to perform the same job responsibilities in a different manner. It is important for an employer to be both creative and responsive in the interactive process.
When an employee requests an accommodation because of a disability, the employer must first determine if leave determines whether a requested accommodation is reasonable. A reasonable accommodation must be provided to a qualified individual with a disability unless the employer can demonstrate that the accommodation would pose an undue hardship or present a direct threat to the health and safety of that employee or others. It is recommended that employers are often better off not immediately resorting to an undue hardship defense in response to an accommodation request. Employers are advised to first attempt, through the interactive process, to identify and offer other potentially reasonable accommodations if the accommodation requested by the employee is not reasonable or for some other reason is not acceptable. Immediately resorting to an undue hardship defense places the burden of proof squarely on the employer and could open the employer’s financial status up for discovery in litigation if an employer claims undue hardship because of the added expense of the requested accommodation.
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 continued until the issue was resolved. If an employee should impede the process, or stop communication altogether, attempts at communication through phone calls and written communication, using an overnight carrier, if necessary. The process should be clearly documented.
A good way for an employer to begin its participation in the interactive process is to ask the simple question, “How can I help you?” This question often elicits what accommodation is being sought without unduly complicating the process. If it is a simple request for accommodation, it can be granted without further discussion and documented by the employer.
Dentists proceed with caution when dealing with this area of employment and 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.
Federal, state and local leave ordinances require employers to provide a certain amount of mandatory paid sick leave, and additional leave requirements to eligible employees under the Family and Medical Leave Act (FMLA) and the California Family Rights Act (“CFRA”) may apply to employers with 5-50 or more employees.
As part of the interactive process, once an accommodation request is made, dentists should ask the employee to provide certain information from the employee’s healthcare provider in the form of a written healthcare provider certification or Reasonable Accommodation Questionnaire. This information includes confirmation that the employee has a qualifying disability, i.e. a mental or physical impairment that limits a major life activity, as well as the job restrictions placed on the employee. (Employers should NOT ask for a diagnosis). During the interactive process, the employer and employee will have discussions to determine if the requested accommodation will be effective in enabling the employee to perform the essential functions of the job or, as a last resort, if the accommodation requested (even if reasonable) 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 … 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.”
No law states that an employer must lower the standards of a job. Accurate job descriptions listing the essential and marginal functions in each employee’s 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.
Potentially acceptable accommodations may include job restructuring; relatively short, definite periods of leave; a modified work schedule; job coaching; providing assistive aids and services such as qualified readers or interpreters to an applicant or employee; modifying employer policy; modifying supervisory methods; or additional training.
As part of the reasonable accommodation process, it is often helpful to analyze the employee’s limitations or restrictions, as set forth in the Reasonable Accommodation Questionnaire (as modified by the specific circumstances of the request), in a side-by-side comparison with the essential functions of the employee’s position as set forth in a job description. Focus on what (if any) reasonable measures can be taken to help the employee perform the essential functions of the job.
The dialogue should occur between the employer and employee with directions for the employee to get information from his or her healthcare provider in a reasonably timely manner. The employer should not communicate with the health care provider directly.
Depending on the circumstances, a quick turnaround time for documentation could be warranted. In almost all instances, it should include the employee having his or her healthcare provider fill out the requested Reasonable Accommodation Questionnaire (as modified) and then providing it 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 meet his/her restrictions. If reasonable accommodation cannot be made, there is an undue hardship to the employer or an alternative open position is not available, dentists should contact an attorney to discuss the next steps.
CDA members also can contact Practice Support for guidance and initial advice.
State of California Civil Rights Department: Reasonable Accommodation
Sample Employee Request for Reasonable Accommodation – Confidential and CERTIFICATION FROM PHYSICIAN/HEALTH CARE PROVIDER English
Sample Employee Request for Reasonable Accommodation – Confidential and CERTIFICATION FROM PHYSICIAN/HEALTH CARE PROVIDER Spanish
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