May 14, 2011
The Reasonable Accommodation Process Done Right
by Rick Goldman
While an employer is not required to create a position for an injured worker who seeks accommodation, an employer must do an investigation of all available positions which the employee is qualified for and could fill.
In Moore, the employee, who was working as a “bounty hunter”, suffered a back injury in the course and scope of his employment. He was declared TTD for some time. When he was released to return to work with significant restrictions the employer searched for an alternate, available position for the employee and offered the employee two “desk jobs.” The employee turned down both positions, stating that they were too far away from his home and that he was not interested in the jobs. The employer then stated they would try to find a position in their corporate office, but the employee stated he needed to make the same amount of money as he was making in the position he was employed when injured.
The next time the employer tried to speak with the employee (via its counsel) it was referred to the employee’s newly hired attorney. Further conversation with that attorney revealed that plaintiff was interested in settlement of his purported claims, and no mention of continuing the interactive process was mentioned. Soon thereafter the employee filed suit against the employer claiming, among other things, that he was denied reasonable accommodation and terminated.
The Court ruled that there was no evidence that the employer terminated the employee or that it failed to engage in the requisite interactive process. It heavily relied on the fact that several alternate positions were offered, but were turned down. The Court further asserted that it was the employee who discontinued the interactive process, choosing to sue the employer rather than request additional information about possible job openings.
What This Means For You
This is an example of the correct way to handle the interactive process. The employer timely respond to the employee’s initial need for reasonable accommodation, looked for alternate positions that the employee could fill and promptly offered them to the employee and continued with the interactive process until the employee cut it off. As difficult as the interactive process can be this shows that with adequate preparation and the assistance of counsel it can be done right.
It is clear that the offer of alternate positions was a key element in this employer’s success. While an employer is not required to create a position for an injured worker who seeks accommodation, an employer must do an investigation of all available positions which the employee is qualified for and could fill. It is recommended that these investigations be well documented to show that an employer has made appropriate efforts to put the employee back to work.
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