ADA Game Changer: Avoid 10 Common Mistakes in the Reasonable Accommodation Process
By Jonathan A. Segal
Under the Americans with Disabilities Act (ADA) Amendments Act of 2008, the definition of a disability remains a physical or mental impairment that substantially limits a major life activity. However, as discussed in last month's Legal Trends column, the amendments expanded the pool of protected people with disabilities. Because more individuals will now be considered to have disabilities, employers will have to consider reasonable accommodations substantially more often.
The amendments also broaden the definition of being "regarded as having a disability." An individual may be regarded as having a disability if he or she is subject to adverse action because of a physical or mental impairment "whether or not the impairment limits or is perceived to limit a major life activity." As a result, employers now need to be more careful to avoid tripping into a perceived disability claim by asking questions or making statements during the accommodation process that may suggest that they perceive an individual as having a physical or emotional condition.
This article provides guidance on the reasonable accommodation process and recommendations for minimizing exposure to ADA claims.
The amendments did not change the reasonable accommodation process. The law states that employers must make reasonable accommodations for qualified individuals with disabilities, provided the accommodations do not impose an undue hardship on the employer.
Employers do not have to eliminate essential job functions. They need only attempt to reasonably accommodate how employees accomplish them. If a job function is not essential, an employer may eliminate it.
With the likelihood that there will be increased litigation about what is a reasonable accommodation, employers should make sure their job descriptions are up-to-date.
Job descriptions are one factor that can support an employer's position that a function is essential.
Traditionally, job descriptions have focused on physical requirements, such as lifting and standing. They also need to focus on "stamina requirements," such as working long hours or more than five days per week. These requirements are often at issue when accommodating white-collar employees.
Employers would benefIt from adopting and distributing updated reasonable accommodation policies. There are benefits to having policies that encourage employees to consult with the HR department—rather than supervisors—if they need accommodations.
First, an employer with a reasonable accommodation policy demonstrates its commitment to the law. By having complaints go to HR professionals rather than to supervisors, companies limit the amount of confidential information in supervisors' hands. Plus, the accommodation dialogue is dicey, and most supervisors don't have the skills to engage in it.
Moreover, if an employee talks to a supervisor and does not consult with an HR professional, and then later complains that the employer did not accommodate the employee adequately, the employee's failure to consult with a member of the HR department should be a factor for the court to consider.
Even if an employer has a policy requesting that employees consult with the HR department about accommodations, some employees inevitably will ask their supervisors for accommodations anyway. Accordingly, supervisors must be trained to report all accommodation requests to HR without asking employees follow-up questions.
Supervisors should not say yes to a proposal, even if they think the requested accommodation is reasonable. If a supervisor agrees to eliminate an essential job function for one employee, this could make it more difficult for a company to argue that the function is essential—and more difficult to prevail if faced with a claim by another employee.
Similarly, supervisors should not say no to a proposal, even if they think the requested accommodation is unreasonable. Even if the supervisor is correct in his or her assessment, that should not end the accommodation process.
Train supervisors that a request for an accommodation should be interpreted broadly. A "plain English" request is sufficient; there's no need for legal buzzwords. And the notice may come from a family member, a health professional or another representative.
Supervisors need training on how to avoid creating accommodation requests that otherwise would not exist.
Suppose a supervisor asks an applicant during the interview whether she can work nights as required by the job and the applicant says no. The supervisor should leave it at that and not ask why. If the supervisor asks why, the applicant may disclose medical reasons that the employer may need to try to accommodate. Or, the disclosed medical reasons may be perceived as the basis for adverse action if the applicant is rejected.
Supervisors also must be vigilant in not making comments or asking questions that may suggest that they perceive a current employee as having any physical or mental condition.
If an employee is acting "off," it's reasonable to say "Are you OK today?" But don't say "You seem depressed."
Supervisors' training should focus on corrective action. The mantra should be "Focus on performance or behavior without speculating or inquiring about the cause of the deficiency." One of the unanticipated adverse actions of the ADA is that kindhearted attempts to get at the cause of performance problems carry with them real legal risks.
While supervisors need to be counseled to focus on performance or behavior and not actual or perceived disabilities, they also need to be told to contact an HR professional if an employee discloses a physical or mental condition in response to coaching, discipline or evaluation. Even if the employee does not specifically request an accommodation, the disclosure may give rise to a duty to commence the interactive accommodation dialogue.
As HR professionals conduct interactive dialogues with employees to identify reasonable accommodations, they must avoid the following 10 common mistakes:
1. Ceasing the accommodation dialogue with an employee because no reasonable accommodation would enable the employee to perform the job's essential functions. If an employee cannot perform essential functions of the current job, the employer may consider other accommodations, including:
- Working part time.
- Reassigning the employee to a vacant position.
- Providing the employee with an unpaid leave of absence.
2. Assuming that a function is essential simply because the employee's manager says it is. In litigation, you can bet that the employee will challenge the issue, so ensure that the position you take is reasonable. Relevant factors include:
- Whether the task is in the job description.
- The frequency and importance of the task.
- Whether others could perform the task.
- Whether other employees with the same job title or responsibilities perform the task.
3. Defining "undue hardship" too broadly. Cost will rarely be an undue hardship. Cost is measured in relation to the employer's revenue, not the employee's compensation. In addition, the resentment of other employees usually is irrelevant under the ADA. The feelings of other employees may be relevant only if other employees are actually being burdened unfairly—for example, by being required to work longer hours on most days so that another employee can work shorter hours on those days.
4. Sharing with line managers all the specifics of the employee's physical or mental impairment. As a general rule, the employee's manager has a need to know only the nature of the accommodation that the HR professional has concluded is appropriate: An exception may be if the nature of the disability affects how the manager interacts with the employee. For example, if the employee has a hearing impairment, the manager would need to face the employee when speaking.
5. Failing to consider the relationship between the ADA and other laws. Even if an employer suspects that part-time employment would not be a reasonable accommodation under the ADA, for instance, the employer may have to offer it in the form of "reduced schedule" leave under the Family and Medical Leave Act (FMLA). In most cases, a disability under the Americans with Disabilities Act, as amended, will be considered a serious health condition under the FMLA.
6. Dismissing an employee's request because on its face it is unreasonable, such as when an employee provides a doctor's note requesting "removal of all stress-inducing responsibilities." Even if the request is unreasonable, HR professionals must engage in interactive dialogue.
In the example above, the HR staff member might begin by asking "What tasks can't you perform?" and "What accommodations would you like us to consider?" It may be that the employee's request cannot be accommodated, but employers must achieve the right result by following the required process.
7. Being "too reasonable" by eliminating essential functions.
Assume a job requires lifting 50 pounds and the employee provides a note from his doctor stating that he can lift only 30 pounds for four to six weeks because of a back impairment. There are two risks involved in eliminating essential job functions, even for limited periods:
First, it may be harder to argue later that lifting 50 pounds is essential for this or another employee.
Second, other employees may argue that they are entitled to similar treatment and that failure to remove the job function for others is discriminatory based on sex, race, religion or membership in some other protected group.
You can minimize the first risk by making clear to the employee that you are going beyond what the law requires for a limited period and cannot eliminate the function permanently. You can minimize the second risk by documenting nondiscriminatory reasons why you are making an exception so you can try to distinguish this person from others who may claim "me, too." Relevant factors may include:
- The position.
- The number of other employees who can perform the task.
- The length of temporary removal of the requirement.
8. Failing to document the reasons why an accommodation request is denied. No documentation might equal no defense.
9. Considering performance in deciding whether an accommodation is reasonable. Sometimes, managers get frustrated when a deficient employee requests an accommodation. The employer may say that the organization already is accommodating the worker by keeping that individual employed. Performance cannot enter into a decision whether to accommodate, but the existence of a disability is not a shield against discipline for below-par performance.
10. Failing to consider reasonable accommodations simply because an employee request doesn't include specific ideas. An employer has the duty to investigate possible accommodations, even if an employee does not offer them. Check with associations that advocate for the disability. Check web sites that may offer suggestions. Some of the recommendations may not be reasonable, but that does not mean HR professionals should reject them entirely. Consider whether modification could make them reasonable.
How to Get More Help For Workers with Disabilities
When an employee with a disability seeks reasonable accommodations, an employer may want to mention its employee assistance program (EAP). The question that arises is this: How can an employer remind employees of the program during the reasonable accommodation process without inviting perceived disability claims?
The choice of words is critical. Supervisors may remind employees of the program "because it can help employees solve workplace and other problems." But they should not use the word "counseling" or define what the "other problems" are.
If an employee seeks assistance, the EAP provider may make inquiries about physical and mental issues. The key is that the EAP provider, rather than the employer, makes the inquiries.
To ensure that the wording is right and that no employee can credibly argue that he or she was perceived as disabled because of a mention about an EAP, employers may wish to include a properly worded reminder about the program on their corrective action forms. This helps to avoid perceived disability issues and increases the likelihood that an employee may get help.
In a formal policy, state that EAP consultations are confidential and that the employer won't know of any physical or mental issue unless the employee brings it up with the employer. Employees should be informed that if they need accommodations for conditions they are discussing with the EAP provider, they should request accommodations from the HR department.
Jonathan A. Segal, a partner with Duane Morris in Philadelphia and managing principal of the Duane Morris Institute, focuses on counseling, training and strategic planning to minimize litigation and unionization.
Reprinted with permission from the Society for Human Resource Management.