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Client Tested and Lawyer Approved: Strategies For Difficult Disability Accommodations
Brenda Kasper and Lisa Frank
Be Flexible
Key Points
Employer has “affirmative duty” to reasonably accommodate
Duty is continuing and not exhausted by one effort
Discuss
DiscussDiscuss
Discuss
The Interactive
Dance
Interactive Process• No special language required• Designate responsible employee in accommodation policy• Train managers• Act promptly
• Is disability obvious?• Employee “self-diagnosis” vs. medical provider input• Ask for anticipated duration of restriction(s)• Beware of a comprehensive medical examination; only ask for what’s
necessary
• Be creative• Keep an open mind• Involve the employee and his/her medical provider
• Choose a reasonable and effective accommodation• Employee choice is relevant and must be considered but not
determinative
• Document, including any follow-up dates• Make sure the right people know
• Check on effectiveness• Monitor, including for new technology or other updates
Gather Info
Recognize
Explore Options
Choose Accommodatio
n
Implement
Monitor
Handling Outbursts and Perceived Threats
Interactive Process
• Is disability obvious?• Employee “self-diagnosis” vs. medical
provider input• Beware of comprehensive medical
exams; ask only for what’s necessary
Gather Info
Tips For Medical ExamsFocus on objective conduct, not stereotypes
Consider certification rather than examination
If medical exam required, limit information to “fit for duty”
Is Working From Home A Reasonable Accommodation?
Interactive Process
• Be creative• Keep an open mind• Involve the employee’s medical
provider
Explore Options
Tips To Evaluate Work From Home Requests
Distinguish between attendance (work hours) and physical presence (work location)
Do you really need “bodies in chairs”?
Do other employees work remotely or from home?
What’s in your job description?
Accommodating Intermittent Leave and Spotty Attendance
Interactive Process
• Choose a reasonable and effective accommodation
• Employee choice is relevant but not determinative
Choose Accommodatio
n
Tips For Accommodating Spotty Attendance Is regular and reliable attendance an essential
function?
Is “intermittent leave” under FMLA or CFRA required?
Make the employee quantify number of unplanned absences/tardiness
Reassignment
Interactive Process
• Choose effective accommodation• Employee choice relevant, but not
determinative
Choose Accommodati
on
Tips For Reassignment
Accommodation of last resort (but don’t forget it)
Preferential treatment required
Have in-person meetings
Look broadly and show your work
Thank You!
Brenda Kasper [email protected] (760) 676-9452
Lisa Frank [email protected] (760) 676-9451