In October, we launched a three-part blog series in honor of National Disability Awareness Month (NDEAM) focusing on items employers should consider as they reviewed policies and practices related to leave of absence and disability programs. In part I, we discussed managing leave of absence requests. Part II focused on employer disability plans. In this final part of our series, we turn our attention to accommodation programs.
The Americans with Disabilities Act (ADA) became law in 1990 to provide protection against discrimination for qualified individuals with a disability. The ADA applies to employers with 15 or more employees for each working day in each of 20 or more calendar weeks in the current or preceding calendar year. Employers who are not covered by the ADA should check state and local laws for applicability. The U.S. Equal Employment Opportunity (EEOC) has responsibility for enforcement of the ADA.
In 2008, Congress passed the ADA Amendments Act (ADAAA) which broadened the interpretation of ADA’s definition of disability (effective January 1, 2009). With the passage of the ADAAA, the EEOC finalized its associated regulations on March 25, 2011.
With the expanded definition of disability under the ADAAA, employers generally spend less time determining whether an employee meets ADAAA’s definition of a disability and more time making sure it meets the obligations under the law. Title I requires covered employers to provide reasonable accommodations for applicants and employees with a disability and prohibits discrimination on the basis of a disability in all aspects of employment. This means employers must assess accommodation requests on an individual basis and engage in the interactive process. It also means employers should make sure their leaders and Human Resources personnel are trained in the ADA, as their failure to act may trigger liability for ADA violations in terms of back/front pay, reinstatement, restored benefits, attorney’s fees, and litigation costs.
Incorporating Accommodations into Return-to-Work/Stay-at-Work Strategy
Reasonable accommodations are not only required by the ADA but can be part of the employer’s stay-at-work/return-to-work strategies. A study conducted by the Job Accommodation Network (JAN), a free service provided by the U.S. Department of Labor’s Office of Disability Employment Policy, showed for than half of employers surveyed, an accommodation resulted in no cost; with the remainder reporting a usual cost of $500. While a reasonable accommodation is one that the employer can make without undue hardship, the undue hardship standard is the employer’s burden of proving. It involves an action requiring significant expense or difficulty.
Employee and Employer Responsibilities
Both employees and employers have responsibilities under the ADA. The Employer Assistance and Resource Network on Disability Inclusion (EARN) offers a framework employers can leverage for building a disability inclusive culture. Two components of EARN’s framework are (1) ensure productivity (reasonable accommodations) and (2) communicate (company policies and practices). It is best for the employer to start with a written policy, procedure, or process that explains the roles in a request for a reasonable accommodation. This provides awareness to all parties involved and consistency. The employer’s leaders should be trained to recognize an employee situation involving a need for an accommodation and refer the employee to that established process to avoid delays and frustration. For employers needing assistance on policies and procedures, JAN may be starting point for sample documents along with tips for successful implementation.
The ADA also places obligations on the employee (or applicant) to make known to the employer that they need an accommodation. These situations may become complex in terms of when the employer can or should ask about the potential need for accommodation. Employers may be responsible for initiating the process when the employee’s need is obvious. A starting point for assistance may be the EEOC’s Enforcement Guidance on Reasonable Accommodation and Undue Hardship under the ADA. Similar to the need for a leave of absence, the employee does not need to reference ADA or use specific words; plain words suffice. Once the employer has knowledge of the employee’s request, it may engage in the interactive process where the solution is complicated and/or not obvious. The interactive process provides a flexible, on-going discussion between the employee and employer.
Effective Interactive Process
Key steps to an effective interactive process will include:
- Identifying “Automatic” Accommodations: Employers may want to identify types of accommodations that it can easily make and have part of an automatic approval process without the need for the interactive process. These may include no-cost or low-cost options the employer can make through a standard request process or as part of a request process available to all employees regardless of disability.
- Defining job functions: As a best practice, employers should regularly review their job descriptions and make sure essential functions of the job are articulated. For any physical requirements, employers may want to watch the work performed to make sure the requirement is accurate and aligns to the business operation or function (may be referred to as job analysis).
- Gathering Information: The employer may ask the employee for documentation about his/her disability and functional limitations. However, in some circumstances, the employer may need to determine first whether the employee’s condition meets the ADAAA’s definition of disability (recall the ADAAA-expanded definition of disability). In most situations once a disability is established, the employer does not need complete medical records to decide. The employer also cannot request information related to other conditions or disabilities not requiring an accommodation. JAN also has resources the employer can leverage for accommodation solutions and ideas.
- Documenting Discussions and Decisions: Keeping accurate records of the conversations, meetings and cadence of events and actions taken is an important way an employer can demonstrate its good faith efforts to engage in the interactive process and make a reasonable accommodation. Throughout the interactive process, it’s critical the employer respond to the request as soon as possible and communicate with the employee even after the accommodation is implemented to understand whether it’s working and if any adjustments are needed.
The interactive process is a critical component of an employer’s stay-at-work and return-to-work strategies. It allows employees to remain productive and/or return to work from leave or disability earlier. Besides compliance with the ADA, it avoids unnecessary costs for the employer and should be part of its Disability Equity Inclusion and Accessibility (DEIA) strategy.
What Employers Should Do
Navigating the federal, state, and local landscape with respect to leave, disability, and accommodation programs is complex and evolving. There’s no better time for employers to review these programs to make sure they are compliant and support the employer’s DEIA, health and absence strategies.
What ReedGroup Is Doing
If you’re looking for assistance managing accommodations or to ensure compliance across your organization, ReedGroup has solutions for you. Check out our offerings here.
Information provided on this blog is intended for general educational use. It is not intended to provide legal advice. ReedGroup does not provide legal services. Consult an attorney for legal advice on this or any other topic.