Don’t Fall into Common Traps: An Employer’s Obligations to Sick and Disabled Employees

May 5, 2014

KSC

Even the most well-intentioned employers can potentially expose themselves to liability if they are not well versed in the benefits afforded to their sick or disabled employees under state and federal law. The following summary of the relevant law will assist you in understanding what employment practices are lawful or unlawful, and what steps you must take with regard to your sick or disabled employees.

The language in the federal statute, the ADAA, and the Massachusetts statute, General Laws c. 151B are substantially similar. According to state and federal law, employees with a qualified handicap are protected from discrimination on the basis of that handicap, as long as the employee is capable of performing the essential functions of the position with reasonable accommodation. Unwary employers could fall into certain traps regarding their treatment of sick or disabled employees.

Is the employee handicapped?

Employees are generally considered "handicapped" if their condition limits or restricts a major life activity, even temporarily. The legal definition of major life activities is very broad, including walking, seeing, hearing, speaking, caring for oneself, performing manual tasks, working, thinking, and sleeping, among others. A qualified handicapped person is one who is capable of performing the essential functions of a particular job with reasonable accommodation to his or her handicap. If an employee can be considered a qualified handicapped person, an employer has certain obligations to that employee.

Can the employee perform the essential functions of the job?

Employers are often faced with balancing the needs of running a business against their obligations to their sick or disabled employees. If employees are not capable of performing the primary tasks associated with their position, then employers are not obligated to the employee under disability law. However, if an employee's handicap or illness limits only incidental functions of the position, or tasks that are not performed regularly as part of the position, the employer may owe the employee a duty to offer a reasonable accommodation.

What is a reasonable accommodation?

A reasonable accommodation is any adjustment or modification to the way a job is done, an employment practice, or a work environment that makes it possible for an employee to perform the essential functions or his or her position. Even if a handicapped employee is actually performing the job, the employer is obligated to reasonably accommodate the employee if he is performing the job with difficulty. It is important to note that the employer does not have to provide the best accommodation available, or even the accommodation specifically requested by the employee, but instead is obligated to provide only an accommodation that is effective for its purpose. Further, an accommodation that is not likely to enable the employee to perform the essential functions of the position is not considered a reasonable one, and therefore not required.

Types of reasonable accommodations

Most employers recognize that wider doorways or lowered desk spaces are reasonable accommodations to assist disabled employees in performing the essential functions of their positions. However, accommodations that have been found to be reasonable by the courts may surprise some employers. In certain circumstances, employers may be required to reassign nonessential job functions to other employees, permit performance of job functions at alternate locations (such as working from home), or even modify methods of supervision or evaluation. Employers are often surprised to learn that time off from work, even extended periods of time, can be considered a reasonable accommodation. While employers are not required to grant sick or disabled employees open-ended or indefinite leaves of absence, courts have required employers to provide leaves of absence as long as 52 weeks to a disabled employee.

The interactive process

Logically, an employer is not required to provide an accommodation when it is not aware of, or has no reason to know of the employee's illness or disability. Employees are responsible for informing their employer that an accommodation is needed, unless the handicap and the need for an accommodation are known or should be known to the employer. However, if an employee is unable to suggest a reasonable accommodation, the employer is obligated to engage in a dialog with the employee to identify one.

The duty to engage in an interactive dialog is ongoing. Both employers and employees must engage in a good faith interactive discussion to determine whether a reasonable accommodation exists that would permit the employee to perform the essential functions of his job. In some cases, employers may even be required to initiate the discussion if the employee has not done so. It is important to note that employers are obligated to engage in the interactive process even when it believes the requested accommodation is futile. Employers must take note that refusal to engage in the interactive process is in and of itself a violation of discrimination laws.

Undue Hardship

Of course, the duty to provide sick and disabled employees with reasonable accommodations is not without limit. Employers that can successfully show that providing the employee with a reasonable accommodation would pose an undue hardship to the business are not obligated to do so. For example, if an employer can successfully demonstrate that holding an employee's position open during an extended leave of absence would pose an undue burden to the company, it is not obligated to hold the position open. Considerations specific to each employer, such as the size of the business in proportion to the number of employees, the composition and structure of the employer's workforce, and the nature and costs of the necessary accommodation, will be important in determining an employer's obligation.

In summary, employers must be aware of their obligations when making employment decisions regarding employees or potential employees with known illnesses or disabilities. Employers are advised to consult an employment law attorney to avoid potential exposure to liability.

by: Kathryn S. Crouss

BusinessWest
May 5, 2014

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