By By Michael G. McClory ,
Bullard Law, Portland law firm
I grew up watching hockey. While I rooted for the LA Kings, these were the pre-Gretzky days and the Kings name seemed ironic. Some of the best hockey was in Philadelphia where the Flyers, led by Rick MacLeish, Bobby Clarke and Bill Barber won back to back Stanley Cups in 1974 and 1975.
While the recent passing of MacLeish made me think back on those teams, my overriding memory of the Flyers is of Bobby Clarke beating the odds. Announcers always focused on his diabetes; to me, they sounded surprised that Clarke could overcome diabetes to become an all-star, NHL MVP, and eventual Hall of Fame inductee.
Clarke’s story applies in the workplace. The NHL Entry Draft is how teams get the rights to hire players newly-eligible to play in the league. Despite having first round talent, all teams knew of Clarke’s diabetes and every team passed on him before the Flyers took a chance on him in the second round.
Under the ADA, the goal is to allow for hiring decisions to be made based on the merits. The ADA seeks to wash the myth, fear and stereotyping relating to disabilities out of the process. It is imperfect, but strides have been made.
For that reason, today’s (fictional) mailbag letter caught the staff at The Bullard Edge by surprise. Stu (last name withheld) is a successful entrepreneur. However, his reaction to a request to discuss reasonable accommodation is a bit shocking. We are going to let you read his letter for yourselves and will then try to sort out the fear and stereotype from the legitimate and lawful.
You may not be able to tell that I am frustrated, but I am. These cowardly, lying, sniveling cheats who apply for jobs and the one-way rigged legal system that protects them make me want to scream.
Here is the situation. I run Mid-Town Auto. It is my company. I opened it in 2009 and am the President, CFO, HR Manager, production supervisor and a bunch of other things. We fix cars, build better engines, do custom paint work, and are getting into high-end customization. We do good work and are building a brand. We just passed the 50-employee threshold and may double over the next year.
Our success may make us a target. Last Friday I offered employment on one of our customization teams to someone who seemed to check all the boxes. He goes by TW. He grew up in a car family, has about 80% of a college engineering degree, and spent the past three years in California doing custom paint jobs. His portfolio had pictures of some awesome work that he said he had done. I emailed the offer letter to him; he signed it and dropped it off on Wednesday. We had agreed on a June 27 start date.
Yesterday, I picked up a too-short voicemail message from TW while I was at lunch with my accountant. This is just one day after TW delivered the signed offer letter. He said that he needs to talk to me “when convenient” about reasonable accommodation. He didn’t say what he wants or why.
I feel like I am being played. I met with TW twice (once by phone) before offering the job. He didn’t breathe a word about disability or needing accommodation. He told me he could do the job. Clearly, he was just tricking me into offering before dropping this bombshell. It was his plan all along.
I can’t afford it. I need someone who can do the job and helps the company turn a profit. I was going to call him and pull the offer; however, Ace, my accountant, told me that could get me into trouble. He suggested I talk to a lawyer first. However, since that costs money and The Bullard Edge is free, let me ask you: can I get into trouble here?
The Bullard Edge‘s Response:
We checked the archives, Stu, and have not located another (fictional) mailbag letter that is as wrong as yours. However, behind all of the bluster we can see that you do have one thing in common with most other employers: you want to do the right thing.
First, we recommend that you review EEOC’s description of the ADA and disability discrimination. While you are at it, you may also want to review information about Oregon’s and Washington’s parallel laws.
Second, you state that TW “didn’t breathe a word about disability or needing accommodation.” It sounds like you did not ask about disability or accommodation and that is a very good thing.
The ADA has three separate sets of rules regarding medical inquiries and examinations, one for each of three stages in the hiring process.
Pre-Offer: Prior to extending a job offer, an employer may not require an applicant to submit to a medical examination or to respond to medical questions. The good news, Stu, is that you complied with this part of the law. Also, TW did not lie or mislead by not mentioning disability or asking about accommodation.
Post-Offer/Pre-Employment: During the time after making a conditional job offer and before employment starts, an employer may require a medical exam or ask medical questions (as long as all applicants are treated the same). This is where you are with TW.
Post-Employment: After employment begins, an employer may only require that an employee submit to a medical examination or respond to medical questions where the examination/question is job-related and consistent with business necessity.
Third, I sense some concern on your part that any accommodation is going to be too expensive and is going to mean TW is not doing his job. That is not the case. Or, to put it another way, the ADA does not require Mid-Town Auto or any other employer to provide an accommodation that would be an undue hardship on the employer. The factors for determining whether any particular accommodation would be an undue hardship include, but are not limited to: (1) the nature and cost of the accommodation; (2) the financial resources of the employer; and (3) the impact of the accommodation on the operation of the employer’s business. Moreover, they are per se unreasonable if they result in an employee not performing the essential functions of the job. (Note, though, that if one form of accommodation is not reasonable, there is still an obligation to consider whether another form of accommodation would be reasonable.)
Fourth, TW clearly asked to talk to you about accommodation. That is an appropriate action on his part. Your initial reaction ~ wanting to rescind the offer ~ is not an appropriate response to a request for accommodation. When you are faced with a request for accommodation, your obligation is to engage in an “interactive process” with the employee until you have resolved the accommodation issue (determined whether accommodation is needed and, if so, whether reasonable accommodation is possible).
Fifth, while TW outright asked to talk about accommodation, there is not always a clear request to engage in the interactive process. Employers need to pay attention because the duty to engage in the interactive process may be triggered directly (like here) or indirectly (such as a remark by an employee about an injury or an observation by an employer that an employee is having trouble doing something).
Sixth, when the duty to engage in the interactive process is triggered, the employer should interact with gusto. If the process breaks down, you want it to be because the employee or applicant has failed to participate fully. Here are some of the features that are typically a part of the interactive process.
– Analyze the job involved and determine its essential functions.
– Confirm the employee’s request.
– Consult with the employee regarding any job-related limitations and how those limitations might be overcome.
– Obtain medical information relevant to the request.
– Identify and evaluate potential accommodations.
After considering the employee’s preference select the accommodation that is most appropriate for both the employee and the employer.
Seventh, go speak to TW. I do not know what the duties of a customization team member are, but I assume you do. TW did not tell you what he wants or thinks he might need, but you can find out that information by talking to him. You may need to obtain medical information related to the request for accommodation (including information related to any work-related limitations TW may have and/or related to any safety concerns you have). With that information you can evaluate whether there is a reasonable accommodation that is needed, feasible and available. Where there are several that would be effective, you are allowed to select between them (not TW).
Eighth, reasonable accommodation is not always possible. The various options may be unreasonable or may pose an undue hardship. In that case, a job offer may be rescinded or an employment relationship ended. The ADA does not require an employer to hire or retain an employee who is not able to do the essential functions of the job, with or without reasonable accommodation. The bottom line, Stu, is that you need to go through the interactive process before rescinding TW’s job offer.
After drafting this response, and thinking a little more about the fact that you asked the question before acting, I have confidence that you will have a good result with TW. Please contact us again and let us know how it resolves.
The Bullard Edge
*The Bullard Edge wants to thank Annie McClory for contributing her original artwork.
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