Thursday, October 1, 2015

Have an ADA Accommodation Request?

Tips on how to get it right


You’d think it would be fairly easy. Have a conversation with an employee with a disability about what is necessary to allow him to perform the essential functions of his job, then provide it and everyone is happy. Right? Apparently not, since there are so many ADA claims filed each year - 25,369 in 2014 according to the EEOC. Those charges resulted in about $95 million in monetary benefits to claimants in 2014, not including monetary benefits obtained through litigation (which I’m sure were significant).

So, here are some steps to take to when you receive a request for an accommodation. Keep in mind, while an employee does have to request an accommodation –it’s not actually necessary for the employee to say "I need an ADA accommodation in order to perform the essential functions of my job." The EEOC provides some examples of "plain language" statements that will be considered a request for a reasonable accommodation:

Example A: An employee tells her supervisor, "I'm having trouble getting to work at my scheduled starting time because of medical treatments I'm undergoing." This is a request for a reasonable accommodation.

Example B: An employee tells his supervisor, "I need six weeks off to get treatment for a back problem." This is a request for a reasonable accommodation.

Example C: A new employee, who uses a wheelchair, informs the employer that her wheelchair cannot fit under the desk in her office. This is a request for reasonable accommodation.

A few things you must do, can and should do, and what you cannot and don’t have to do - after receiving a request for accommodation:

You must engage in what is called the "interactive process". This is probably one area where employers miss the mark the most. Too many people make an assumption that no accommodation can be made that is reasonable and so they never even have a conversation. Until you speak with the employee, you don’t know what is needed, or even being requested. It doesn’t require an overly structured and formal process (although for documentation purposes, many companies do formalize it). This can really be an informal discussion with the employee about what the problem is, and what can be done to resolve it to allow the employee to perform the essential functions of the job. You need to find out what limitations or impediments the employee is experiencing that are due to a disability as defined under the ADA. The employee may suggest one or more accommodations, you may suggest others. The conversation needs to be "interactive" and the desired results are that you and the employee agree on a reasonable and effective accommodation if one is deemed necessary.

You can require documentation from a physician to determine if the medical condition is indeed a disability as defined under the ADA. You don’t have to, but you can. (It is recommended that you get appropriate documentation.) Example A above does not give you enough information to determine if the situation would qualify as an ADA defined disability and therefore qualify for an accommodation. Requiring a physician’s certification of disability would be prudent in this case. Once received, you will know if it is a disability, what limitations the employee is experiencing and can give you suggestions on what accommodations would be effective. However, in Example C, it’s quite clear the employee has a disability, so you can move onto what accommodation would be reasonable and effective.

You can negotiate with the employee on what accommodation to provide. You don’t have to provide the very accommodation the employee requests if it’s not reasonable or imposes an undue hardship on your business. Determining undue hardship is very fact-specific to your business operations. The EEOC looks at several factors:

  • the cost of the accommodation
  • the size and financial resources of your business
  • the structure of your business, and
  • the effect the accommodation would have on your business.

If the requested accommodation will cost as much as your yearly budget for facilities maintenance, it may not be reasonable. But what is unreasonable for a small or mid-size company may be perfectly reasonable for a large company.

You don’t have to remove essential job functions, create a new job, or provide personal need items such as eye glasses and mobility aids. The ADA does not require any of that of employers.

You don’t have to continue the process if the employee doesn’t participate. The process is meant to be interactive. This means the employee has to participate. If your employee refuses to engage in a conversation, refuses or doesn’t provide requested documentation that a disability exists, or refuses to consider any accommodation aside from what he demands (and assuming that accommodation is not reasonable or causes an undue hardship), there is nothing for you to accommodate and he loses the protection of the ADA. However, I strongly suggest you keep meticulous documentation should this occur and consulting with an attorney would be advised. Being able to adequately defend a claim for failure to accommodate is in your best interest.

You don’t have to accommodate the use of alcohol or drugs. This question comes up a lot. Alcohol and drug use present special problems under the ADA. While employees who are alcoholic or drug addicted may have a disability under the law, you can require them to meet the same work and performance standards - including not drinking or using drugs on the job - as employees who don’t have a disability. Here are some guidelines to follow when dealing with these issues:

  • Alcoholism. Alcoholism is a disability covered by the ADA. This means that an employer cannot fire or discipline a worker simply for being an alcoholic. However, an employer can fire or discipline an alcoholic worker for failing to meet work-related performance and behavior standards imposed on all employees -- even if the worker fails to meet these standards because of alcohol abuse.
  • Illegal drug use. The ADA does not protect employees who currently use or are addicted to illegal drugs. These employees do not have a disability within the meaning of the ADA and don't have the right to be free from discrimination or to receive a reasonable accommodation. However, the ADA does cover workers who are no longer using drugs and have successfully completed (or are currently participating in) a supervised drug rehabilitation program.
  • Legal drug use. If an employee is taking prescription medication or over-the-counter drugs to treat a disability, you may have to accommodate that employee's use of drugs and the side effects the drugs have on the employee. Much of this will depend on the particular job the employee performs (would use of the drug create safety issues?) as well as other issues.

You should document the whole process. This includes the request, your conversations with the employee, and the final accommodation agreed on with the employee.

You should approach the process with an open mind, be creative and make good faith efforts to provide effective and reasonable accommodations to disabled employees. And in some cases, don’t overly complicate the process. There are times when it just makes better sense to go ahead and provide the accommodation without making the employee jump through unnecessary hoops. Example C above provides a classic example. You don’t need to get quotes on a new desk, or think about providing a new chair that will fit under the existing desk. Just put some blocks under the desk legs to raise the height to the appropriate level. It’s inexpensive, fast and solves the issue. No fuss, no muss. Your employee will appreciate your effort and the ease of the solution, which will likely add to her positive attitude and performance, and you won’t waste time, effort and money going down a long and involved, but unnecessary, road. A win-win situation.

And now for some great resources. If you’re not already aware of it, check out askjan.org. The Job Accommodation Network (JAN) has a wealth of information, tools and resources on its website for disability accommodation. There are examples of effective accommodations for all sorts of disabilities; there are forms you can use and templates for having discussions with employees. If you need to speak to a live person, there are folks there who will walk you through the whole process and offer useful suggestions, at no charge. You won’t find a better resource for disability accommodation.

The EEOC also has great information, with examples that will help you understand how the process should proceed, and what the EEOC will look at in determining if your process is adequate. Check out this document on accommodating disabilities.

 

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