2008’s ADA Amendments Act broadened the scope of the definition of disability and enlarged the group of people who would qualify. The amendments increased pressure on employers to give reasonable accommodations and created more potential liability for companies that do not carefully follow the law. This article acts as a helpful guide for employers to follow, and lists common mistakes to avoid.
What Employers Can Do
Employers can take several steps to protect themselves from liability and prepare their company in the event of a future lawsuit.
Keep Job Descriptions Detailed and Accurate
It is vital that job descriptions are timely and include the job’s essential functions. Do not forget that employers are generally responsible to reasonably accommodate any employee who is unable to perform an essential function. However, making a reasonable accommodation does not need to include eliminating an essential function of a job position. Including essential functions in a job description can help legally prove that the listed task is crucial to the job; these functions can include stamina requirements like working long hours and physical requirements like standing or lifting.
Develop an Accommodation Policy
Developing a reasonable accommodation policy can demonstrate your commitment to honoring the ADA. This policy should direct any reasonable accommodation requests to human resources rather than supervisors. HR professionals are more prepared to deal with the nuances and legal risks of these types of requests.
Despite these measures, supervisors still need to know how to respond if a reasonable accommodation is requested of them. Rather than giving a definitive answer, they should instead refer the situation to HR, regardless of how feasible it may or may not be. Additionally, supervisors must be trained to take care of potential ADA situations that may developed during a job interview or in their daily work with employees.
Common Mistakes
In handling ADA situations, HR professionals should be careful to avoid these common mistakes.
- Ending accommodation discussions with an employee if no reasonable accommodation can be found to help the employee perform the essential job function. Instead, employers should consider other accommodations such as reassigning the employee, working part time, or offering an unpaid leave of absence.
- Taking a manager’s word that a function is actually essential. If the issue goes to court, this will certainly be contested, so employers should personally investigate to determine if the function in question is essential.
- Using the “undue hardship” provision too freely. For example, reasons such as other employees’ reactions or cost generally will not be accepted by the court as an undue hardship for providing a reasonable accommodation.
- Discussing disability details with the employee’s manager. In general, the manager should only know the nature of the provided accommodation. An exception is if the disability affects how the manager and employee interact, such as a hearing impairment.
- Failing to examine other laws applicable to an employee’s disability. For example, a disability under the ADA may also qualify as a serious health condition under FMLA, meaning their laws and provisions might come into play.
- Rejecting an employee’s request because it seems impractical or unreasonable. Employers should still converse with the employee to see if they can reach a solution. It is important to follow (and document) the full process even if you still determine that the request is not feasible.
- Eliminating essential functions completely as an accommodation, even for a short time. Though this is sometimes a workable solution, it can also make it more difficult to argue later that the function is actually essential. Additionally, other employees may claim discrimination or begin to argue that the function should not be essential for them either. To avoid this, emphasize that relaxing or suspending the essential function is temporary and document the specific reasons for this action.
- Neglecting to properly document a denied accommodation request. Documentation of the process and reason for denial will aid your defense in the event of litigation.
- Weighing job performance when deciding if an accommodation is reasonable. Whether they are high performers or underachievers, all workers should be treated the same in this process.
- Failing to consider reasonable accommodations just because the employee doesn’t offer any specific ideas. When an employee informs HR that he or she needs an accommodation, it is the employer’s job to explore potential accommodations.
Now more than ever, the responsibility has shifted to employers to offer reasonable accommodations whenever possible and show care in handling workplace disability-related issues. You must be familiar with the nuances of the ADA and the ADA Amendments Act to keep your company in compliance and avoid expensive penalties and lawsuits and.
Brought to you by the insurance professionals at Nine Point Strategies
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