Don’t Let a Focus on Legal Rights Crowd Out Options that Lower Risks

07 November 2022 Labor & Employment Law Perspectives Blog
Author(s): Dabney D. Ware

This may seem surprising coming from a lawyer.  But, if you focus solely on legal rights and obligations, you may not be taking full advantage of opportunities to lower legal risks.  Knowing “what’s legal” is an important step to help avoid trouble, but it does not always maximize risk reduction.  Determining legal rights and lowering risk are two different goals, even though they have significant overlap.  This article is a reminder to keep both in mind – especially when a person is still employed, allowing opportunity for facts to further develop before termination or a charge occurs. 

Two scenarios – reasonable accommodation requests and discipline and possible termination decisions – readily illustrate some differences between risk mitigation and legal rights. Keep in mind however, the same principles can apply in plenty of other situations.

The legal analysis for reasonable accommodation has multiple steps and may require information you don’t yet have – such as a treating provider confirming restrictions and ability to carry out essential job duties.  In such scenarios, it is common (and appropriate) to consider whether a requested accommodation is legally required.  That means establishing that the person has a disability, which prevents them from performing essential functions of the job, and that the potential reasonable accommodation is not an undue hardship. 

Rather than limiting your focus to a determination of whether a particular accommodation is legally required, a better question to ask may be about risk mitigation.  For example, if an employee requests to shift between sitting and standing, and you routinely provide standing desks, the easy answer is to just provide a standing desk.   But, most issues are not that easy.  Perhaps, you have some standing desks available when the need is documented, but the employee needs another week before they can see a treating provider.  Consider providing the standing desk in the meantime, pending the documentation. 

Providing a reasonable accommodation on a “trial” basis can be a very helpful option and can lower the risk of later litigation.  If the request for reasonable accommodation is something you are skeptical will work, but has little cost (perhaps a schedule change), consider trying it, with clear documentation to the employee that it is not permanent and will be periodically evaluated. If the measure works (even if it was not required), it’s a win for both you and the employee.  If it does not work, the trial will help document why the requested accommodation was not helpful (employee continued to be late or have attendance issues), or why it was an undue hardship (there were coverage issues).  If there is later litigation, the “trial” run of the requested accommodation demonstrates employer flexibility and participation in the interactive process. 

Another place to think about risk mitigation, rather than just legal rights and obligations, is in the area of discipline and termination.  Even with clear evidence that an employee’s behavior supports termination, consider providing the employee an opportunity to explain.  The chance to explain is not legally required, but typically costs nothing, and can definitely lower risk.  If you learn of mitigating circumstances, those can be considered.  And, just because those circumstances are considered, does not mean the decision changes. If the employee does not offer an explanation or it is not persuasive, the employer still looks more reasonable by having asked.   In contrast, not offering the opportunity to explain can be costly if there were mitigating factors (perhaps earlier provocation from a coworker), or even just make the employer look arrogant.

To be clear, this is a reminder to avoid solely relying on knowledge of your legal rights, even though acting on your legal rights will indeed be enough for a lot of situations, and some situations will not present practical opportunities to lower risk.  As always, if you have questions check with your Foley attorney, but remember to ask about risk reduction and not just your legal obligations.

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