By Kate McGovern Torone, Editor

Current and accurate job descriptions are your best defense to Americans with Disabilities Act (ADA) claims, speakers told attendees at the Society for Human Resource Management’s (SHRM's) annual conference.

Shayna Helene Balch and Pavneet Singh Uppal of Fisher & Phillips discussed several aspects of ADA compliance during their presentation, The Employee Accommodation Conundrum: How to Navigate It and Determine When Enough Is Enough, given June 20 at the SHRM event in Washington, D.C.

“An inaccurate job description actually works against you,” said Balch. If one function is no longer essential or no longer needs to be performed at all, it calls into question the other functions. That can hurt an employer during the interactive process.

Because employers never need to remove essential functions, it is imperative to ensure that all essential functions—and only essential functions—are listed as such in a job description. And while employers are not prohibited from being more generous, Singh Uppal warned against such actions. “You should never get rid of essential functions,” he said.

Job descriptions also should be attached to medical information requests sent to doctors, Balch said.

So how often do they need to be reviewed? “You should realistically be looking at your job descriptions annually,” Balch said. Once you’ve done that, the burden is on the employee to show that they can perform the essential functions.

Making accommodations

When it comes to actually making an accommodation, remember that you do not have to give employees exactly what they ask for, Singh Uppal said. Any effective accommodation will satisfy your requirements under the ADA.

First, discuss the problem and obtain documentation. “Do not assume when it comes to the ADA”; that’s the biggest mistake that employers make, Balch said. Never assume that an employee cannot perform a job’s essential functions. You may eventually arrive at that conclusion but you have to get there through consultation with the employee and his doctor.

And, even if a doctor suggests a major accommodation—replacing the ductwork in your building, for example—go through the process and evaluate the request as you would any other request. Ask the employee whether he really needs the ductwork replaced and whether he thinks it is reasonable. If he says no, document that in a letter to the employee.

When it comes to leave, ask doctors to be specific. If an employee has already been out for 12 weeks and provides a doctor’s note stating that he needs another month, ask the doctor whether that additional month of recuperation is expected to enable the employee to return to work. If the doctor says “I don’t know” or “indeterminate,” it’s not a reasonable request, Singh Uppal said. If the doctor indicates that an extension likely will enable the employee to return to work, then it is reasonable. “I wish I could tell you 6 months is the hard cutoff,” he said, “but it’s not.”

And when you deny an accommodation, be careful about engaging in a cost-benefit analysis. “Claiming something costs too much is almost always a loser,” Singh Uppal said. “Juries don’t sympathize with that.” Instead, when you’re writing a letter to an employee on leave, for example, focus on how their absence affects coworkers. Explain how other employees are having to work overtime and miss family events to cover their duties. Get a jury to sympathize with the coworkers, he said.

Look at the interactive process from a jury’s perspective, too, Singh Uppal added. You want it to be clear that you did not cause any breakdown in communication.