Conditional Offer
manyhats
9 Posts
Can we make a job offer to an applicant conditional on our ability to make a reasonable accommodation for a disability?
manyhats
9 Posts
Comments
Did the need for accommodations come up in the interview and the solutions just weren't explored at that time? Or are you assuming the applicant will need accommodations because of some visible impairment? I think providing this information will make a difference in the types of answers you'll get from the Forumites.
You may condition an offer of employment on the candidate successfully passing a medical examination that would demonstrate whether or not he or she could perform the essential duties of the job with or without reasonalbe accommodaiton.
A post-offer, pre-employment medical examination may be required, if you don't routinely do pre-employment medical examinations for all successful candidates, when the candidate has either an obvious disability or has disclosed a hidden disability that would affect the candidate's ability to perform the essential duties of the job.
If the candidate is determined to be disabled following the medical examination but able to perform the essential duties of the job with reasonable accommodation, you then may not refuse to hire the candidate since you have made the offer on conditions which he then meets.
However, under ADA, a disabled employee who is unable to perform the essential duties of the job even with reasonable accommodation or needs an accommodaiton that is an "undue hardship" is no longer considered ADA eligible and thus not "protected" on the basis of disability.
The issue of then what needs to be done to establish whether or not there is a reasonable accommdation. Unless you can establish by intellectual argument that there are no such accommodations for this emplyee, you actually do need to find accommodations which would be reasonable and effective. That most likely means trial and error.
So, even if you do hire the individual and then determine in practicality that there ARE NO effective reasonable accommdations that can be implemented without undue hardship, you are NOT barred from then terminating the employee despite the disability.
Somewhere in the interview process or before the conditional offer was made, you should have discussed with the candidate how he or she would be able to perform the essential duties of the job given the known or disclosed job-related disability. Hopefully, the candidate would have described or demonstrated a possible reasonable accommdation. That would be a starting point to see what's out there. A second may be the employee's physician, if you do go through the interactive process. Or, if you did a pre-employment medical exmaination given that does report back the ability to perform the essential duties with reasonable accommodation, perhaps the doctor there may be able to give some suggestions, especially since the doctor would be familiar with the duties and demands of the job. Another place to check is the Job Accommdation Network on the internet.
So, to answer your question, you may not recant the offer unless you can establish that there are no effective reasonable accommodations in existence that could be implement without undue hardship. And that's pretty tall order to do without seeing in practice whether anything works.
That's just my reading of the situation as an HR, non-lawyer type.
I've never had this happen, so I won't be much help. But, if during the interview process, the person indicated he/she could do the job with accommodation, what that accommodation would be was explored at that time. And I thought, but could be wrong, that if the disability was obvious and was related to the ability to perform an essential function of the job, one could ask how the applicant would perform that function. But, I did think all this took place during the interview process and if the candidate was ultimately able to perform the essential functions, then he/she was considered along with the rest of the applicant pool.
Elizabeth