The Americans with Disabilities Act was signed into law in 1990 to prevent discrimination against people with disabilities. In 2008, the law was updated to broaden the definition of disability. Among other things, the law requires employers to provide reasonable accommodations for disabled individuals during all phases of employment. Failing to comply can result in costly lawsuits and enforcement actions.
Let’s look at some simple Do’s and Don’ts that can help you avoid common mistakes about reasonable accommodations:
DO begin with the decision to educate yourself. Knowledge of the law will help you prepare, so you can protect your company from liability.
DON’T end the conversation too quickly if you can’t easily identify a reasonable accommodation. These might include working part time, reassigning the employee, or providing an unpaid leave of absence.
DO keep job descriptions up to date, including essential functions. You have a responsibility to reasonably accommodate an employee who can’t perform an essential function. But you are not obligated to eliminate an essential function, such as lifting, standing, or working long hours. Accurate job descriptions can help legally prove which functions are essential and which are not.
DON’T take a manager’s word that a specific function is essential. This can be contested if the issue goes to court. Employers should investigate for themselves and decide whether a function is essential.
DO create and distribute a reasonable accommodation policy to show your commitment to ADA compliance. The policy should direct all reasonable accommodation requests to Human Resources, not supervisors. HR professionals are better equipped to deal with the nuances and legal risks of handling ADA requests.
DON’T overuse the undue hardship provision to deny accommodations. Factors such as cost or other employees’ reactions are generally not acceptable reasons for refusing an accommodation.
DO train supervisors to refer reasonable accommodation requests to HR. In addition, they should know how to handle ADA situations in job interviews and daily work with employees.
DON’T discuss details of an employee’s disability with his or her manager. The manager needs to know only about the accommodation being provided. An exception would be a disability that affects how the manager will interact with the employee, such as a hearing impairment.
DO consider other laws applicable to an employee’s disability. For example, a disability under the ADA often also qualifies as a serious health condition under FMLA, so FMLA provisions might come into play.
DON’T outright reject a request because it seems impractical. Follow the process and work toward a resolution.
DO make sure to properly document all accommodation requests, particularly those that are denied. Careful documentation will help you defend your decision in the event of future litigation.
DON’T be tempted to eliminate essential functions of a job, even for a limited time. This can make it harder to argue later that the function is essential for the current or any future employee.
DO take responsibility. Employers are ultimately responsible for investigating possible accommodations. If an employee doesn’t offer suggestions after a request, do try to find an accommodation for them.
DON’T take performance into account when deciding if an accommodation is reasonable. All workers should be treated the same in this process, whether high performers or underachievers.
In closing, remember that the burden has shifted to employers to provide reasonable accommodations and to show care in handling disability issues in the workplace. Keep your organization in compliance by learning about the ADA and the ADA amendments act. This can help protect you from costly lawsuits and penalties down the line.