An employer has the right to change work methods, production targets, and qualification standards as business necessity dictates. As the number of qualified individuals who have an in-place reasonable accommodation grows, those of us who manage these human resources must establish and enforce procedures for withdrawing a granted reasonable accommodation. Changing human behavior around this issue will focus on our line supervisor and our employees.
The suggested procedure for changing or removing an in-place accommodation goes as follows:
- Re-open the electronic or paper file that contains the history of the accommodation. Prepare to expand the documentation of the accommodation as the employee continues to be employed by the company.
- Re-start the interactive conversation from the point of the last entry in the record. Include in this new entry the business necessity reasoning behind the need for a change. You may want to make the first entry, “The record and interactive conversation regarding Mr. Smith’s lifting accommodation is being re-opened on this date by (insert your name). This is being triggered because of a change to the freezer production area and the demands of his job.”
- Contact the employee and immediate supervisor to establish a face-to-face time to discuss the need for the change. This step may require meeting separately with the supervisor and the employee. If you discover, as in the case of Albert E. Gucker v. U.S. Steel Corp., No. 2:13-cv-00583-NBF, that a supervisor or manager has unilaterally decided that a change was needed, be sure to consult with your labor law counsel as you may have already been exposed to an ADA Title I claim of discrimination in employment. This happens when the manager decides that accommodations are not allowed or that an individual must make a change in how he works. This seems a little odd but the record clearly shows that this is an all-to-frequent occurrence. In any case be sure your “business necessity” documentation is rock solid.
- Explore how the change affects the essential functions (EF) of the job. If a physical demand linked to an EF has changed, determine whether or not the employee continues to need the in-place accommodation. The direct supervisor may be able to contribute information about the change to the physical demands of the job, although he will not be a contributor to the discussion of whether or not the employee’s physical issue continues to need accommodation.
- The exploration of the changes to the job may benefit from input from your ergonomic evaluation or risk management team. The question at the heart of a new accommodation will be the actual demands of the job. Don’t take this discussion lightly: you have already invested in documenting your business necessity reasoning, now is the time to invest in an assessment and documentation of new or changed job demands.
- As a side note, always keep in mind that a change to a work method or work load for a job that requires an employment entrance examination (aka, Post-Offer Testing) may require a change to the test protocol. Advise your test vendor of the change to the job.
- Finally, allow the flow of the interactive process and interactive conversation to proceed as you do with all other requests for accommodation.
A change or pull-back of an in-place accommodation is a cause for a certain level of alarm on your part. Given the recent spate of expensive settlements triggered by this type of action, I think it’s worth reminding you of the necessity to keep your guard up.
Our Online Reasonable Accommodation Workshop is now available on demand for those who seek an in-depth knowledge of the “how and why” of the reasonable accommodation provisions of ADA Title I. The tools and techniques taught in this online workshop will ease management of often difficult requests for reasonable accommodation