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This seems like a surprise for a lawyer. However, if you only focus on legal rights and obligations, you may not do much to reduce legal risks. Knowing “what the law is” is an important step in helping to avoid problems, but it does not always increase risk reduction. Determining legal rights and reducing risk are two different goals, although there is considerable overlap. This article is a reminder to remember both – especially if someone is still working, and has the opportunity to develop more content before being terminated or paid.
Two situations – reasonable accommodation requests and education and termination decisions – highlight some of the differences between risk mitigation and legal rights. Remember, the principles can apply to other situations as well.
There are many aspects of the legal analysis of reasonableness, and you need information that you don’t have – such as the treatment provider confirming the restrictions and the ability to carry out the necessary tasks. In such circumstances, it is common (and reasonable) to consider whether a requested facility is required by law. It means confirming that a person has a disability that prevents them from performing the essential functions of a job, and that living well may not be that difficult.
Instead of narrowing your focus to determining whether an accommodation is legally required, a better question might be about risk mitigation. For example, if an employee asks to switch between sitting and standing, and you provide standing desks, the simple answer is to simply provide a standing desk. However, most of the issues are not that simple. Perhaps, you have some standing tables when the need is written, but the employee needs another week before seeing a medical provider. Consider providing a standing desk at this time, and wait for the documents.
Providing a reasonable stay on a “trial” basis can be very helpful and reduce the risk of future litigation. If the request for accommodation is something that you doubt will be effective, but the price is low (the schedule may vary), consider the test, and clear documents to the employee that are not permanent, and will be reviewed at each time. If the measure works (even if it’s not required), it’s a win for both you and the employee. If that doesn’t work, it helps to document why the requested accommodation wasn’t good (the employee is always late or attendance is a problem), or why it’s so difficult (a reason coverage). If there is a future lawsuit, the “trial” organization of the requested facility demonstrates the flexibility of the employer and the opportunity to negotiate.
Another area to think about risk reduction, rather than legal rights and obligations, is in the area of education and cessation. Even if there is clear evidence that the employee’s behavior supports termination, consider giving the employee an opportunity to explain. Attendance at the briefing is not required by law, but it is usually free of charge and greatly reduces the risk. If you learn about degenerate conditions, it can be considered. And just because those factors have been considered, doesn’t mean the decision will change. If the employee doesn’t give an explanation or isn’t persuasive, the employer can still seem rude by asking. However, not giving an opportunity to explain can be costly if it is embarrassing (perhaps offending a former colleague) or makes the employer arrogant.
To be clear, this is a reminder to avoid relying solely on knowledge of your legal rights, although acting on your legal rights may be sufficient in many situations, and in some situations it may not be. which contribute to reducing the risk.
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