Reasonable Accommodations & the ADA & HR

HR professionals should give their sick leave and ADA-related policies a quick review this season.  Many employers have a policy that permits their provision of “reasonable accommodations” to disabled employees, but few really explain how the “interactive process” works when creating these accommodations.

The University of Ohio has a fairly detailed process that involves multiple steps, review of accommodation effectiveness, and other smart steps for compliance purposes.  

Employers should take note of good processes, but also consider Med-Arb as part of the process.  “Med-Arb” is shorthand for Mediation-Arbitration, a hybrid version of these processes.  Employers should give some consideration as to whether their interactive process should involve an individual, whether an employee or external vendor, to serve as a “Mediator and Arbitrator” Neutral over the interactive process.  

In so doing, the Neutral hears both sides ideas about what is and is not needed to assist an employee with successfully performing the duties of the position in light of the disability.  The Neutral can review medical information, ask questions, and attempt to forge an agreement on what accommodation would be appropriate.  If an agreement cannot be reached, then the Neutral “makes the call” on what accommodation will be made – thereby transitioning to an Arbitrator.

Employers should give significant consideration to the use of an external Neutral in these ADA situations, as it may reduce the likelihood of discrimination, retaliation and interference claims by employees.

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