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Practical Suggestions Regarding Social Media, the ADA and Independent Contractors – Part I

Scenario #1: Requests for Accommodation Under the ADA

Question:  When an employee makes a request for accommodations under the ADA, we ask them to complete an accommodation request form. If they refuse to complete the form, can we deny their request because they failed to follow the company’s procedure?

Answer: The ADA requires that the accommodation process be interactive, meaning that both the employer and the employee must do their respective parts.  An employee’s failure to follow company policy during the process would amount to a failure by the employee to fulfill his/her role in the interactive process.  Therefore, it generally would be safe for the employer to stop the process until the employee meets the requirements.  It would be very helpful, however, for the employer to have an ADA policy that spells out the steps of the accommodation process and what is expected of employees, including any requirements to complete specific forms.  The policy also should state that requests for accommodation will not be processed until the required form is completed. 

Question:  We have an employee who has recently returned to work after time off related to an on-the-job injury and still claims she is unable to perform some of the physical tasks of her job. Her performance at work has been satisfactory. The employee’s supervisor made the decision not to require her to perform these physical tasks as part of her daily job responsibilities. Does this action expose our company to liability?

Answer: The ADA does not require employers to excuse performance of essential job duties or to lower performance standards.  If an employer chooses to do this, there is some risk of setting a precedent, such that when future requests for accommodation are made that involve not having to perform all essential functions of the job, the employer will have a more difficult time rejecting the request as unreasonable.  In the situation posed in the question, the employee saying that it still hurts to perform some of her essential job duties should be deemed adequate notice to the employer of a request for an accommodation.  The employer should go through the proper steps of gathering information and evaluating possible accommodations that do not involve eliminating or excusing performance of all of the employee’s essential job duties.