The Americans With Disabilities Act (ADA) and California Fair Employment and Housing Act (FEHA) can be a thorny issue for a lot of companies. Many aren’t sure exactly what they need to do to avoid running afoul of the law once an employee comes to them about a disability.
There are some simple solutions you can enact today that could help keep your company out of trouble.
Learn to ask the most important question
Human resource experts say that the most powerful tool at your disposal is a simple question. Ask the employee, “How can I help you?”
Then, listen. Your employee may have a clear idea of what they need — or they may be looking for your guidance. Either way, you’re starting off on the right foot by showing that you’re willing to provide reasonable accommodations for your disabled employees. And keep in mind that California law requires that the employer communicate with the employee in a good faith “interactive process”. Failing to do so can be an independent basis for liability.
Document everything that happens
Start a file and keep track of what your employee said, how you responded, what sort of accommodations they have asked you to provide and what your response was and why.
You should also document what you did and did not ask regarding their medical information and make sure that you limit your inquiries only to what is legally allowed. Focus on limitating on the employee’s ability to do his/her job. Do not elicit diagnostic information.
Finally, make sure that you follow-up with your employee about the accommodations they need or receive — and document how well they are working or what steps you need to take next. All of this information should remain confidential and be between the company’s HR professional and the disabled employees.
Know how to respond to the questions of other employees
Reasonable accommodation for your disabled employee may look a lot like “preferential treatment” to your other employees — and it is. However, it’s necessary to make work possible for the employee with the disability….it’s the law.
Just the same, you may hear questions like, “Why does Janice get a parking space next to the door when I have seniority over her?” or “Why does John get to bring his dog to work?” Learn to answer directly with a statement that is clear but protective of your disabled employee’s privacy. A statement like, “It’s a private issue and is in compliance with the law,” is enough.
If an ADA or FEHA complaint does come through your door, don’t panic. Instead, talk to an attorney about your options and the ways to mitigate any fallout. Hart Kienle Pentecost attorneys have more than 35 years of experience in guiding businesses through ADA and FEHA compliance.