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Experts cover today’s key dairy labor issues and offer fool-proof techniques to optimize employee performance, sat­isfaction and longevity.

When Injuries Occur: Reasonable Accomodation and Disability Discrimination

Aug 20, 2012

Simple steps you can take to protect your dairy from bogus claims.

Anthony Raimondo 2010 06 photoBy Anthony P. Raimondo, attorney

Disability discrimination lawsuits are a growing problem in the dairy industry. Employees who leave the dairy who have suffered either workplace injuries or medical conditions unrelated to work are increasingly claiming that they were discriminated against on the basis of a disability. Dairy producers can take simple steps to protect themselves from these claims.

Generally, disability discrimination laws require employers to offer reasonable accommodation to a disabled worker where the accommodation will allow the employee to perform the essential duties of the position and there is no undue hardship to the business. Employers must engage employees in an “interactive process” to determine what, if any, reasonable accommodations will enable the employee to return to work.

An accommodation can be almost anything that enables a disabled employee to perform the essential duties of the position. Examples include additional equipment, such as a back brace, wrist brace or ergonomic chair. An accommodation can be a change in job duties, such as assigning the heaviest lifting to another employee, or allowing employees time for extra rest breaks. Sometimes, the accommodation can even be for a leave of absence so that the condition can improve.

Whether the accommodation is “reasonable” depends upon the circumstances of the employment and the nature of the accommodation sought. Large businesses typically are seen as having more flexibility to grant a requested accommodation, while smaller businesses may have more difficulty doing so.

Economics is also a consideration, as the cost of the accommodation can be taken into account. But if there is a reasonable accommodation that will enable the employee to perform the essential duties of the position, then it must be granted. Sometimes, more than one reasonable accommodation will exist. The employer is not required to choose the accommodation that is most desired by the employee and may choose the one that it thinks is best in light of the overall circumstances.

Often, the legal issues turn on whether or not the employer engaged in an “interactive process” to determine what, if any, accommodations are available. This process is a critical part of the employer’s obligation and should be carefully documented. The interactive process is simply a process of communication to determine what accommodations may enable the employee to return to work.

Employers should require employees to provide current medical restrictions and should schedule a meeting with the employee to discuss what accommodations the employee thinks are needed, and what the employer thinks can be done. This should be a give and take where both sides suggest ideas in order to come up with a list of possible accommodations.

Consideration should be given to all of the alternatives, and if one or more are reasonable accommodations that do not present an undue hardship, then one should be selected and approved. The process may also include providing a written job description to the employee’s doctor with a request to the doctor to provide input on what the employee can and cannot do.

Documenting the interactive process does not need to be difficult. Employers should have an extra person in the room who is responsible for taking notes during the discussion with the employee. The parties should agree as to who will pursue any necessary follow-up. For example, if the employer is going to send a job description to the doctor, agree to provide it, but make the employee responsible for following up to make sure the doctor actually gives input. Employers should require the employee to ensure that the most current medical restrictions are on file. If the employee agrees that there is no accommodation that would allow him or her to return to work, be careful to note this in the record of the conversation.

One of the reasons these types of cases are becoming increasingly common is that most dairy employers have no record that they have ever communicated directly with the employee regarding the return to work, and plaintiffs’ attorneys will simply accuse the employer of never having engaged in the interactive process. But a simple certified letter requesting current work restrictions, careful management of light duty and return to work process, as well as a documented conversation with the employee about what work can and cannot be done can make such cases more difficult to pursue, and can provide the dairy producer with an advantage in the process.

The goal of this article is to provide employers with current labor and employment law information. The contents should not be interpreted or construed as legal advice or opinion. For individual responses to questions or concerns regarding any given situation, consult with Anthony Raimondo at McCormick Barstow LLP in Fresno, Calif., at (559) 433-1300.

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