By: Rob Parker

Does your company use a staffing firm or temporary agency to fill positions for an interim assignment or on a temp-to-hire basis?  What if one of those contingent workers asked you (not the agency) for a reasonable accommodation due to a disability?  Would you have an interactive conversation with the worker regarding an accommodation or inform the agency and release the worker?

This was the dilemma one of our members had recently. A temporary worker had a knee replacement two years earlier and it was beginning to degenerate and cause issues.  The worker presented the company (not the agency) with a note from her health care provider which stated that she would need to be able to both stand and sit periodically at her desk and that she would need a desk converter with height adjustment.

The company took the position that this worker was not their employee and were under no obligation to accommodate her, especially if there was any expense involved.  That’s when we received a call. Our member wanted to know what the potential liability was if the worker was not accommodated and released without having another assignment lined up.

It is the EEOC’s position that work arrangements involving temporary employment agencies, contract firms, facilities staffing firms, lease-back firms (PEO’s), and welfare-to-work programs can create a “joint-employer” relationship.  Both the temporary agency and/or its client may be liable for discrimination against the worker if:

• The client discriminated against the worker; or
• The agency participates in the discrimination; or
• The agency knew or should have known of the discrimination and failed to take corrective action.

As joint-employers, each is obligated to provide a reasonable accommodation needed on the job, absent undue hardship, if it has notice of the need for the accommodation.  If it is not clear what accommodation should be provided, both entities should engage in an informal interactive process with the worker to clarify what s/he needs and identify the appropriate reasonable accommodation.  Where an entity’s own resources are sufficient to provide an accommodation without undue hardship, it must do so, even if the other entity refuses to contribute to the cost of the accommodation.

In this case, the company continued to refuse to contribute to the purchase of a desk conversion, which is available for approximately $200-$400.  As a result, the agency decided to purchase the desk conversion on its own and provide it for the worker.

It may be mutually beneficial for staffing firms and client employers to specify in their contracts with one another which entity will provide reasonable accommodations or how the costs of accommodations will be shared. This way the question of which entity will provide an accommodation can be anticipated and resolved before a request is actually received.