A temporary worker from a staffing agency has asked us for a disability-related accommodation. Who’s responsible for providing the accommodation – us or the staffing agency?
Quick Answer
Typically, the agency and the employer are joint employers, in which case both are obligated to provide the accommodation absent a contrary agreement or undue hardship.
Legal Perspective
Shawe Rosenthal
Baltimore, Maryland
If the company and the staffing agency are considered joint employers of the temporary worker, then the Equal Employment Opportunity Commission (the federal agency enforcing the federal anti-discrimination laws) says that both are obligated to provide any required reasonable accommodation, absent an undue hardship, if they have notice of the need for an accommodation, says employment attorney Fiona Ong.
The EEOC recommends that the company and the staffing agency set out in their contracts how reasonable accommodations will be provided and who pays for them. Note that the EEOC will generally assume both the company and the staffing agency are joint employers of a temporary worker.
Relevant Case Law
Moskowitz v. Neshaminy School Dist.
Punt v. Kelly Services
Equal Employment Opportunity Comm’n v. S&B Industry, Inc.
HR Insight
Melmark
Andover, Massachusetts
The EEOC addressed this issue in “Enforcement Guidance on the Application of the ADA to Contingent Workers Placed by Temporary Agencies and Other Staffing Firms,” says Senior Director of HR Mary Morris.
The agency’s guidance states that where a staffing firm and its client are joint employers of a temporary worker with a disability, both are obligated to provide a reasonable accommodation needed on the job, absent undue hardship if it has notice of the need for accommodation. This is because each qualifies as an employer of the staffing firm worker.
Moreover, if it is not clear what accommodation should be provided, both entities should engage in the interactive dialogue process with the worker to identify the appropriate reasonable accommodation.
Alternative HR, LLC
Sioux Falls, South Dakota
Once you have determined that the accommodation request is ‘reasonable’, then you can certainly try and negotiate with the staffing agency for part or all of the cost, says Dan Oakland, Founder and CEO of Alternative HR.
Our first inclination, though, would be to provide the accommodation even if it is our cost because we want to be perceived as an employer of choice.
Client Solution Architects
Virginia Beach, Virginia
VP of HR Trinity Lefler says: It depends, but both! Recent developments by the NLRB on joint-employer status should be considered. The company and the staffing agency should work together on the interactive process of accommodation.
The Cost of Noncompliance
Company and staffing agency on the hook for ADA violations: $120K payout
Who was involved: Conduent State and Local Solutions, Inc., a business services provider that operates the New York E-ZPass toll collection system; Broadleaf Results, Inc., a staffing agency that placed workers at Conduent; and an employee with a hearing impairment.
What happened: An EEOC lawsuit claimed the staffing agency placed the employee at a customer service center for the company. The employee notified both supervisors at the company and the staffing agency that she was having difficulties hearing customer calls and requested an accommodation for her hearing-related condition. Ultimately, she asked for a meeting to follow up on her accommodation request. She claimed her manager from the staffing agency told her, “If you cannot hear, then you can’t do the job.” She said she was fired immediately. According to the EEOC, the company failed to take corrective action within its control to remedy the staffing agency’s termination decision, which it knew or should’ve known was discriminatory.
Result: The company and the staffing agency agreed to collectively pay $120,000 in lost wages and damages to settle the dispute. The agreement also:
- Prohibits the company and the staffing agency from discriminating against employees and contingent workers providing services on behalf of client-employees on the basis of disability
- Requires the company and the staffing agency to update their internal policies, and
- Requires the company and the staffing agency to provide appropriate training for management employees about disability discrimination.
Info: Broadleaf and Conduent to Pay $120,000 to Settle EEOC Disability Discrimination Lawsuit, 5/11/23.
Key Takeaways
- If a staffing firm and its client are joint employers, both are obligated to provide reasonable accommodation.
- Staffing firms and their clients should establish by contract how reasonable accommodations will be provided and who will pay for them.
- Typically, only the staffing firm must provide reasonable accommodations that are needed to complete the application process for employment.
- However, a client can violate the ADA by sending an applicant to a staffing firm if it knows or has reason to know that the firm is not providing reasonable accommodations in connection with the application.
- Where the combined resources of a staffing firm and client are insufficient to provide an accommodation without significant expense, both may claim undue hardship under the ADA.
- A staffing firm or client can also show undue hardship by proving that it lacked sufficient resources to provide the accommodation and tried unsuccessfully to get the other to help.
- If a staffing firm or client can provide an accommodation without undue hardship, it must do so even if the other refuses to help.
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