As a HR and ADA Facilitator and author of Making It Work, I have found that mediating disability/medical related issues and barriers in the workplace between employers and employees can assist parties in complying with Title 1 of the Americans with Disabilities Act (ADA) and resolving conflict or misunderstandings. Mediation can be a critical part of the (ADA) Interactive Process, a conversation between the applicant or employee and the employer, when a reasonable accommodation (RA) is requested. A RA is a modification or adjustment to an individual’s job, the work environment, or the way things are usually done because of a workplace barrier that an individual with a medical condition or disability experience.
For example, employers may have to provide a different chair for an individual experiencing significant back pain, a computer screen magnifier for someone who is visually impaired, or time off to go to a doctor’s appointment. Sometimes RA requests are obvious, straight forward, and can be implemented quickly without the need for an in-depth discussion. However, most of the time, you have an employer and an employee who are not knowledgeable about each parties’ obligations, rights and responsibilities, or the process to determine whether an effective RA can be implemented for a qualified individual. As a result, the Equal Employment Opportunity Commission (EEOC) has consistently found that disability discrimination is the 2nd highest type of employment discrimination charge filed against employers.
Impartial, independent mediators can be a proactive and critical part of the ADA interactive process when the parties are trying to gather critical information such as the individual’s wants and needs, workplace barriers, the RA options available, and concerns the employer is experiencing. During these discussions, both parties are under a great deal of stress and experience a lot of fear because of conflicting wants and needs. The employer needs a productive and qualified employee. While the employee needs to manage their health condition while working. Having a knowledgeable mediator that can assist and enable both parties to have a clearer understanding of the needs, options, and challenges related to RA requests can enable both parties to a come to a more agreeable and effective resolution.
The EEOC offers the choice for parties to initially mediate before a disability discrimination charge is officially filed with them. Most employers would rather reach out to an independent mediator during the ADA interactive process rather than mediate through the EEOC or other state agency that administers and enforces discrimination laws against employers. These types of mediations can be time consuming and costly. In addition, these types of mediations can result in bad publicity for the employer.
This article was concurrently published on Mediate.com (LINK) on July 8th. 2022.