Philadelphia — March 6
Both large and small employers need to be aware of their legal responsibilities to employees under the Americans with Disabilities Act (ADA), as lawsuits citing violations continue to rise, according to Pepper Hamilton LLP, a multipractice law firm with 450 attorneys in Pennsylvania, New Jersey, Delaware, New York, Michigan, California, Massachusetts and Washington, D.C.
“Under the ADA, employers have a duty to reasonably accommodate disabled employees but only when those employees have alerted their employers that they need assistance in performing their jobs because of a disability (or when it is obvious)," said Susan K. Lessack, a partner with the labor and employment group at Pepper Hamilton. "Once employees do that, both management and workers must engage in an open dialogue to determine how the employees can be accommodated.”
Pepper Hamilton recently successfully defended Wawa Inc., a chain of convenience stores, against a federal lawsuit by an employee who claimed her rights were violated under the ADA.
The employee, who has a degenerative joint disease, and Wawa had engaged in the “interactive process,” which is a dialogue between the employer and employee (or job applicant) about what type of “reasonable accommodation” the employer can provide that will enable the employee to be able to perform the essential functions of the job.
To accommodate the employee, Wawa reassigned her to a position that would allow her to sit frequently while continuing to work.
A month into this arrangement, however, the plaintiff abandoned her job and subsequently sued Wawa, claiming she was not reasonably accommodated because she was not given the position she wanted.
Ultimately, the court found in favor of Wawa, ruling it had reasonably accommodated the employee, and it was she who failed to sufficiently pursue the interactive process and negotiate further with Wawa once she decided the accommodations were inadequate.
For employers who may face a similar situation, Pepper Hamilton offers the following tips:
- Inform employees of the ADA’s guidelines. “Although employers are under no legal obligation to outline the basic components of the Americans with Disabilities Act, it would be in their best interest to mention the parameters of the ADA in the employee handbook,” said Amy G. McAndrew, an associate at Pepper Hamilton who also worked on the Wawa case. “This is especially advantageous to employers if they are ever faced with a claim of failure to accommodate because the handbook puts the employees on notice of the obligation to tell the employer what they need.”
- Establish an open-door policy.
Employees are responsible for notifying their employers if they need accommodations under the ADA. But they often neglect to do this until it is too late.
“Many times, employers remain unaware that an employee needed an accommodation until after the worker has left the company and filed a lawsuit,” Lessack said. “Employees often fail to make their needs known because they don’t want to make waves or are concerned about their jobs. But most employers are very willing to work with employees who genuinely need assistance.”
- Engage in the interactive process with employees.
“Once an employee gives either written or verbal notice that a disability exists, the employer and worker must collaborate to reach an acceptable solution,” McAndrew said. “This is a vital step that can determine whether or not the employee will pursue litigation and ultimately be successful.”
- Solutions must be workable for both employer and employee.
Occasionally, employees' medical condition will require limitations on their work hours or job duties. But their requests for special accommodations must be reasonable and not create an “undue hardship” for employers.
“For example, if an employee in a 24-hour operation asks to work only daytime hours for a medical reason, the company may have to deny this request, depending on its staffing levels, since all shifts need to be staffed,” Lessack said. “Employees do not get to dictate the accommodation they want. The accommodation has to allow them to perform the essential functions of the job, which may include the ability to work any shift. If the employee can’t do that, the workable accommodation may be to reassign the employee to a different job. The solution in any particular situation really depends on the employee’s limitations, what are truly the essential duties of the employee’s job and the nature and size of the employer’s business."
- Be aware of continuing obligations.
“The duty to accommodate doesn’t end when an accommodation is provided," Lessack said. "If either the worker or the company conclude at some point that the accommodation is no longer effective or workable, then they need to resume the interactive process."
- Be consistent.
“Accommodations made for those with medical disabilities must be uniformly applied without favoritism,” McAndrew said. “An employee who is denied an accommodation should not be able to point to someone in a similar situation who was granted an accommodation.”