The Americans with Disabilities Act requires an employer to accommodate an employee’s disability. The employer must meet with an employee and discuss reasonable accommodations. Does an employee get a representative at these meetings? The Public Employment Relations Board answered this question with a resounding “yes” in Sonoma County Superior Court (2015) PERB Decision No. 2409-C.
In the case, a trial court employee
was diagnosed with a serious illness. She requested a meeting with her employer
to discuss reasonable accommodations. She wanted a union representative during
the meetings. The employer said no. The union filed an unfair practice charge.
PERB held an employee has a right to
representation during an interactive process meeting. An employee may have a
representative present in two contexts. First, an employee has a right to a
representative during a discipline proceeding. Second, the employee has a right
to a representative when engaging in labor activities. This includes activities
like filing a grievance or bargaining.
PERB decided an ADA meeting is
like a grievance. The meeting is a negotiation on the appropriate
accommodation. This directly concerns working conditions. This is the perfect
scenario for a labor representative. The representative has unique knowledge of
the labor relationship. The representative can use this knowledge to negotiate
with the employer. Thus, the employee must be allowed a representative during
an interactive meeting.
Employees are often stressed and
concerned when engaging in the interactive process. Employers can take
advantage of this stress and exploit the employee. A representative can protect
the employee and level the playing field during these negotiations.