ADA Quick Quiz: Your company uses staffing agency workers. A staffing agency worker discloses a medical need and asks for a reasonable accommodation — maybe a computer screen reading program, or an ergonomic chair, or a modified work schedule.

1. Which company must have the interactive conversation to determine what reasonable accommodation is appropriate?

(A) Your company
(B) The staffing agency
(C) Both

2. Which company is obligated to provide the reasonable accommodation?

(A) Your company
(B) The staffing agency
(C) Both

3. Which company is obligated today for the reasonable accommodation?

(A) Your company
(B) The staffing agency
(C) Both

Answers:

In most cases, (C), (C), and (C).

If the company using the staffing agency worker’s services is a joint employer (as is often the case), both companies are responsible for meeting the ADA’s reasonable accommodation requirement. That may mean significant unexpected expense for your company, possibly eliminating much of the savings expected by using non-employee workers.

Few companies using staffing agency workers plan for this possibility, but they should.

Why not plan for this in your contract? You probably have clauses requiring the staffing agency to handle payroll, hiring, background checks, etc. Consider adding a clause requiring the staffing firm to pay for any reasonable accommodation — or at least consider how the cost should be allocated. 

There are many clauses that should be in staffing agency contracts but usually aren’t. Try thinking outside the box and anticipating situations that are likely to arise. Then draft accordingly.

© 2017 Todd Lebowitz, posted on WhoIsMyEmployee.com, Exploring Issues of Independent Contractor Misclassification and Joint Employment. All rights reserved.