This article originally appeared in Law360 on November 30, 2022. It is republished here with permission.
This may seem surprising coming from a lawyer. But if employers focus solely on legal rights and obligations, they may not be taking full advantage of opportunities to lower legal risks.
Don't get me wrong, 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 have significant overlap, but they are two different goals. This is a reminder to keep both goals in mind, especially when a person is still employed, allowing opportunity for facts to further develop before termination or a formal claim occurs.
Two scenarios — reasonable accommodation requests, and discipline and possible termination decisions — readily illustrate some differences between risk mitigation and legal rights. These are just examples, as the same principles can apply in plenty of other situations.
Let's start with reasonable accommodation requests. The legal analysis for reasonable accommodation has multiple steps and may require information an employer doesn'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 requested accommodation is legally required. That means establishing that the person has a disability that prevents them from performing essential functions of the job, and that the potential reasonable accommodation is not an undue hardship.
Rather than limiting the focus to a determination of whether a particular accommodation is legally required, it may be better to consider if there are options that lower risk without any significant cost involved. For example, if an employee requests to shift between sitting and standing, and the company routinely provides standing desks for ergonomic reasons, the easy answer is to just provide a standing desk.
But most issues are not that easy. Perhaps, the company has 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 you are skeptical about the requested accommodation, but it 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 the company and the employee. If it does not work, the trial will help document why the requested accommodation was not helpful (for example, the employee continued to be late or have attendance issues) or why it was an undue hardship (for example, 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 way the company can help lower risk for disability claims is to ensure it is actively engaged in the interactive process. A recent win for Disney in the U.S. Court of Appeals for the Eleventh Circuit in Johnson v. Walt Disney Parks and Resorts helps illustrate this point. After being employed for one week, an employee submitted medical documentation of work restrictions, and requested to be moved to another position. Disney placed the employee on medical leave and "assigned her a case advocate."
One fact noted by the court is that the case advocate considered 18 jobs as possible reassignment options for the employee. Not all companies will be able to have dedicated case advocates to help look for other roles, but there are plenty of other ways — with little extra cost — that companies can use to demonstrate their active participation in the interactive process. This could include a one-on-one meeting with a recruiter to review the individual's qualifications and current or probable job openings.
Notably, Disney argued — and the court agreed — that the individual did not actually establish she was a qualified individual with a disability. Nonetheless, from the court opinion, it appears Disney took steps to address the restrictions and requested accommodation and only made this legal argument in litigation.
Another place to think about risk mitigation, rather than just legal rights and obligations, is 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 the company learns 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 co-worker — or even just make the employer look draconian or arrogant.
Clear communication and respect are also excellent risk mitigation tools. When difficult communications or decisions are on the horizon, there is often discussion trying to decide the best approach. Sometimes the choice feels simple — does the conversation take place first thing in the morning or late in the day?
There's not necessarily a right answer, but if the company is struggling between offering one or more acceptable options, and they are truly all acceptable, choose the option that provides the employee with the most respect or dignity, and not what is most convenient for the manager involved with the situation.
If the employee feels respected, even if they disagree with the feedback, litigation is less likely. But even if the employee does not think the situation was handled respectfully, the company can testify that it made decisions to treat the employee with respect and dignity.
Another example would be conversations when someone is told about significant performance issues, or learns their job is on the line. Once someone understands their job may be affected, it can be hard at the moment to listen well or to collect their thoughts well enough for a constructive dialogue.
Consider follow-up communication. Perhaps the main points are also in an email or memo, but offer to have another conversation, the next day or within the week. And tell the person they can ask questions now, but there will be another opportunity after they have had the chance to process the feedback from this meeting. The extra effort at communication may help avoid litigation, but it can definitely be something the company can cite as part of its efforts to help the employee succeed.
The importance of being considerately engaged is illustrated in another recent decision, when the U.S. Court of Appeals for the Fourth Circuit affirmed summary judgment in favor of East Carolina University. In Olivia Neal v. East Carolina University, the university decided to dismiss a student from its master's degree program in social work.
The student claimed the dismissal violated the Americans with Disabilities Act. The court noted that the university "bent over backwards" to assist the student and provided more than one second chance. In addition, the court commented favorably on the tone of some communications, and noted that multiple emails cited as evidence demonstrated a "genuine desire to help [the plaintiff]" and generally expressed concern for her well-being.
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.