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 brenda@kasperfrank.com (760) 676-9452

Lisa Frank lisa@kasperfrank.com (760) 676-9451