Adam S. Forman, Member of the Firm in the Employment, Labor & Workforce Management practice, in the firm’s Detroit and Chicago offices, was quoted in Law360 Employment Authority, in “Attorneys Leery of AI's Use in Disability Accommodation Talks,” by Anne Cullen. (Read the full version – subscription required.)
Following is an excerpt:
Employers' use of artificial intelligence for human resources tasks has been on the upswing for years despite concerns about the technology perpetuating bias. But experts say newer tools plugging AI into disability accommodation discussions can pose even greater risks.
A quarter of employers are using AI to help manage their workforce, according to a 2022 survey of nearly 1,700 human resource professionals conducted by the Society for Human Resource Management. Among the more recent innovations in this arena are AI tools designed to assist in the Americans with Disabilities Act accommodations process. …
While the use of AI in providing disability accommodation information is relatively novel, employment attorneys said it is not an unpredictable use of the technology and that it's likely businesses will increasingly adopt this kind of AI software. However, attorneys who spoke to Law360 all expressed wariness about utilizing AI for these sensitive discussions.
"I'm not saying that this couldn't work, but my initial concern is about how an algorithm is able to account for the unique circumstances of an individual's physical and mental impairment and the specific functions of a job," said Epstein Becker Green employment partner Adam S. Forman, who frequently advises businesses on AI in the workplace.
"This is moving the target from the employer's legal obligation," Forman said.
ADA's Human Element
The ADA requires employers to try to offer a workplace adjustment to disabled employees that keeps them on equal footing with their peers, and the law mandates that companies work toward that accommodation through the interactive process. …
Epstein Becker's Forman said that for years, businesses have been using AI to field queries during onboarding or to schedule time off or candidate interviews, but he said using these tools in the ADA arena is newer and not nearly as cut-and-dried.
"The more nuanced and specific the output needs to be to a given query, the more likely it needs to get elevated to a human," Forman said. "It seems to me amongst the top of that heap would be accommodation requests for disabilities."
