ADA Workplace Accommodations – How Confident Are You?
Navigating the murky waters of the Americans with Disabilities Act (ADA) can be challenging for many employers. Laws such as the Family Medical Leave Act (FMLA) are easier to navigate because there are defined triggers for eligible employers and employees. Little guesswork is needed to determine whether someone is eligible for FMLA. The ADA requires a much deeper understanding of the law and a more thorough review of the facts. There is no clear delineation between a reasonable request and an undue hardship. Employers are left to gather the facts, review the implications, make the best decision they can, and hope they can defend their position in the event of a lawsuit. We commonly see employers drifting to opposite extremes: denying accommodation requests outright or approving everything out of fear of retaliation. The good news is that it is possible to successfully navigate the ADA interactive process with confidence when you have the right knowledge, processes, and tools.
The Expansion of the ADA
The Americans with Disabilities Act was initially enacted in 1990 and is typically still referred to as the ADA. However, many employers are less familiar with the ADA Amendments Act of 2008. Under the amendment, the number of employees who are entitled to protections under the law was greatly expanded. We will cover a few key items here, but you can find more information regarding the expansion here. The amendment greatly broadens the number of employees who qualify for protection under the law. Below are a few key definitions that illustrate the intent of the amendment.
Key terms:
Disability means, a physical or mental impairment that substantially limits one or more major life activities, a record of such an impairment; or being regarded as having such an impairment.
Major life activities can include, but are not limited to, caring for oneself, performing manual tasks, seeing, hearing, eating, sleeping, walking, standing, lifting, bending, speaking, breathing, learning, reading, concentrating, thinking, communicating, and working.
Major bodily functions can include, functions of the immune system, normal cell growth, digestive, bowel, bladder, neurological, brain, respiratory, circulatory, endocrine, and reproductive functions.
Regarded as having such an impairment applies when if individual establishes that they have been subjected to an action prohibited under the ADAAA because of an actual or perceived physical or mental impairment whether or not the impairment limits or is perceived to limit a major life activity.
A full review and understanding of the ADA is necessary to successfully navigate the interactive process. Many employers evaluate the initial request and decide that the employee does not have a “disability” without requesting the appropriate documentation and without engaging in the interactive process. The emphasis has shifted away from the underlying medical condition, and onto the limited life function. In fact, employers should move away from asking about the medical condition and focus on what job functions cannot be performed and what is needed to allow an employee to successfully complete those job duties.
How COVID Impacted the ADA Process:
The pandemic unveiled gaps in many organizations’ ADA process. Too often, the responsibility was handed from team to team until someone could “manage it”. Without a set process, many scrambled to respond, leading to inconsistent and sometimes inadequate or illegal policies.
Common Pitfalls:
Missteps in the ADA process can be costly. Allegations stemming from a failure to accommodate or properly engage in the interactive process can hurt both reputation and finances.
Improper use of the term accommodation can also lead to unintended liability. The U.S. Department of Labor defines an accommodation as an adjustment to a job or work environment that makes it possible for an individual with a disability to perform their job duties. The term “accommodation” should only be used in the proper context.
During the interactive process, managers and HR teams should be mindful of what is captured in written documentation. Too often we see employers create liability for themselves through the interactive process. Written documentation should stick to the facts and avoid feelings or perceptions.
Accommodation creep is a term we use when a manager agrees to a small “accommodation” without going through the formal accommodation process. Over time, the requested accommodations expands until it causes issues. When accommodations are allowed without the proper evaluation, it can be very difficult to pull them back without creating significant risk to the employer.
Missed Triggers: Employers are required to engage in the ADA interactive process when they know, or should have known, that an employee may need an accommodation. It is critical that managers are properly trained to identify when an employee may need an accommodation. An employee does not have to specifically state that they need an accommodation due to a disability. There are many comments that could trigger further action by the employer.
Possible Examples Include:
“I can’t make it to work on time because my medication causes me to sleep through my alarm.”
“I have a hard time meeting productivity because my vision issues make it difficult for me to read the font on my computer monitor.”
“When my migraines get bad, I miss work because they can last several days at a time.”
These comments don’t necessarily mean that an employee qualifies for an accommodation, but it does trigger the need to inform the employee of how to request an accommodation if they feel that one is needed. From there, the employee may need to provide documentation and the employer will need to engage in the interactive process to determine if a reasonable accommodation can be provided.
Need Assistance with ADA?
This article merely scratches the surface of the ADA. There is no one size fits all approach, and there are no definitive answers. Every situation must be carefully reviewed based on the specific facts. However, it is possible to navigate the process with confidence when you have the right knowledge and tools in place. The ADA is an area where working with highly specialized consultants can add value. The interactive process can be challenging, and it is easy for personal feelings and assumptions to cloud the process. Having policies and processes reviewed by a neutral party can help identify areas of concern. Reviewing interactive templates and summary documents can also ensure the documentation focuses on the relevant facts. Navigating the ADA doesn’t have to be a solo journey. Let us guide you through it by:
Developing a robust ADA process.
Crafting precise policy wording.
Providing training for HR and leadership.
Offering clarity on what to ask (and not ask) employees.
Clarifying what rise to the level of an “undue hardship.”
Creating/Reviewing job descriptions that will allow for a successful interactive conversation.
Book a free consultation with us today and let’s tailor a strategy suited for your organization’s unique needs. Remember, we’re here to support you every step of the way!