For the average small business owner, learning how to ride a unicycle while juggling would be a far easier task than mastering all of the employment laws that come with operating a business. Employee accommodation laws are among the most complex, and mistakes made along the way can lead to a litigation nightmare. So, what’s the worst thing you can do when it comes to an employee accommodation? Not recognizing the need for it (and trust me, it happens all of the time).
Before we get into why this happens so much, let’s start with the basics. Under the Americans with Disabilities Act (ADA) and some state laws, employers are required to adjust or modify their jobs and the workplace to accommodate workers with disabilities, provided those modifications are not a hardship. A disability is broadly defined as anything that limits an employee’s ability to see, hear, talk, stand, concentrate, think, communicate, or interact with others. In other words, most of us are disabled.
Here’s why so many disabilities go unaccommodated: Your employee never asks for one. And while you may think that would at least get you off the hook for penalties, juries often see things differently.
In an ideal world, your employee would come to you and ask for an accommodation. But there have been court cases where an employee did not request accommodation and even later testified that they did not think they needed one. Regardless, juries have found that the employer should have made adjustments in the workplace to assist the employee where it was easy to tell that the employee was disabled.
So, where does all of this leave you as employer? If your employee does not ask for an accommodation, but you suspect they need one, should you ask them?
This can get tricky, but generally yes. According to the federal Equal Employment Opportunity Commission (EEOC), you may ask an employee with a known disability whether they need a reasonable accommodation.
Often, the employee may be asking for an accommodation without using those words. For instance, an employee who says a standing desk would really help their chronic back pain is essentially asking for an accommodation. If you suspect the need, be on the lookout for comments like this even if they’re made casually.
If a conversation does arise, ask very few, need-to-know questions. Redirect your over-sharers to just discuss how the condition impacts the job and tie everything back to a job description (which hopefully you update periodically). Finding out any more than that could result in a discrimination claim later or even a HIPAA violation.
By taking these steps, you can avoid the most common accommodation mistake most employers make and find more time to run your business and perhaps pursue that unicycle and juggling training.
Need a deeper dive? Attend our Reasonable Accommodations Seminar on April 24 at iPlay America in Freehold. You can click here to register. Or, contact NJBIA’s Member Action Center at 1-800-499-4419, ext. 3 or firstname.lastname@example.org.