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HR MATTERS E-TIPS
THIS WEEK'S E-TIP: Six Steps to Effective ADA Accommodations
October 16, 2007, Volume 9, No. 42
Published by Personnel Policy Service, Inc.
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THIS WEEK'S E-TIP: Six Steps to Effective ADA Accommodations
How far do you have to go to accommodate a disabled employee? The
answer is not as easy as most would like and requires a carefully
structured analysis. |
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THIS WEEK'S E-TIP: Six Steps to Effective ADA Accommodations
The Americans with Disabilities Act (ADA) has now been around
long
enough (for over 15 years) that most employers probably
understand
that you have two major obligations. First, you must not
discriminate
against qualified disabled individuals; and second, you must
provide
reasonable accommodations so that qualified individuals can
perform the
essential functions of the job.
This second duty is the most difficult to implement because it
requires
you to engage in a lengthy analysis to determine when an
employee is
disabled and what accommodations are appropriate. The process
can
be overwhelming – often you feel like you have to be both a
medical and
legal professional in order to weigh the complex issues
involved. To help
you comply with this duty, the E-Tips editors have reviewed and
analyzed the ADA statute, regulations, court cases, and
guidances to
develop a six-step guide for responding to accommodation
requests.
In this week's E-Tips, you will find out the four basic
principles of
accommodation and the first two steps you should take when faced
with
an employee who needs an
ADA accommodation.
Next week, you will learn how to engage in the interactive
accommodation process, determine the appropriate accommodation,
implement the accommodation, and make sure the accommodation is
effective.
Four Basic Principles of Accommodation
Under the ADA, employers with 15 or more employees must
accommodate qualified individuals with disabilities to allow
them to
perform the essential functions of the job, unless doing so
would create
an "undue hardship." According to the Equal Employment
Opportunity
Commission's (EEOC) Technical Assistance Manual, a reasonable
accommodation is "a modification or adjustment to a job, the
work
environment, or the way things usually are done that enables a
qualified
individual with a disability to enjoy an equal employment
opportunity."
Generally, accommodations must be provided to ensure equal
access to
the application process, to allow a disabled person to perform
the
essential functions of the job, and to ensure equal benefits and
privileges
of employment. For example, an employer may have to provide a
reader
to a blind applicant to fill out an application form or have to
put in a ramp
to allow an employee in a wheelchair to access the workplace.
The EEOC, in its Technical Assistance Manual, suggests four
basic
principles that employers should apply to every accommodation
decision:
- The accommodation must be effective. In other words, it
must
provide an opportunity for the disabled person to achieve the
same level
of performance or enjoy equal benefits or privileges as an
average,
similarly situated, nondisabled person would.
- The accommodation does not have to be the best
accommodation or the one preferred by the disabled person.
- The employer does not have to provide an accommodation
that
is primarily for the disabled individual's personal use (such
as a
wheelchair or eyeglasses).
- The ADA sets minimum guidelines for accommodation.
Employers, of course, can do more.
Step One: The Request for Accommodation
The accommodation process typically begins when the disabled
individual requests some change to the application process, to
the way
he performs the job, or to the provision of employment benefits.
The
person does not have to mention the ADA or use any "trigger"
words like
"reasonable accommodation" or "ADA disability" to initiate the
process.
Instead, he only has to use "plain English" and give you enough
information to alert you to the fact that he needs an adjustment
or
change at work because he has a medical condition.
So, for example, if an employee tells you he needs a change in
his
scheduled start time because of medical treatments, that
statement is an
accommodation request. However, if the employee simply asks
for a
change in his start time for "personal reasons," this request is
insufficient
to put you on notice of his need for accommodation. Note also
that the
request does not have to be in writing or take any particular
form.
Generally, it is the disabled individual's responsibility to
alert you to any
need for an accommodation. You are not expected to be
clairvoyant
and, therefore, are not required to accommodate any disability
you do
not know about. However, you may initiate the accommodation
process
if you have noticed a change in the ability of a person with a
known
disability to perform the job. For example, if an employee who
has never
been tardy begins to come into work late and you suspect the
tardiness
may be related to a medical condition, you may want to discuss
this
possibility with the employee and evaluate your duty to
accommodate. |
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Step Two: Certifying the Disability
Since an employer only has to accommodate disabled individuals, the
next step in the accommodation process is to determine whether the
individual is disabled and to confirm the need for accommodation. Not
every medical condition is considered an ADA disability.
Therefore, according to the EEOC's guidance on accommodation, you
may require the individual to provide reasonable documentation from an
appropriate health care or rehabilitation professional that certifies
the
disability and any functional limitations requiring accommodation.
Appropriate professionals who may provide the documentation include
doctors, psychologists, nurses, physical and occupational therapists,
speech therapists, vocational rehabilitation specialists, and licensed
mental health professionals.
Reasonable documentation may include information that supports the
existence of the disability, its functional limitations, and the need
for an
accommodation so the individual can perform the job. To help the health
professional determine if the individual is disabled for the purposes of
the
ADA, you should explain the ADA's legal definition of disability (i.e.,
a
physical or mental condition that substantially limits a major life
activity).
You also should ask the health professional to identify specifically
what
the condition is, what major life activity it affects, and how it
substantially
limits that activity. In addition, you should provide a job description
specifying the person's essential job functions so the professional can
verify that an accommodation is needed.
If the disabled individual does not provide the requested medical
documentation, you may refuse to provide the accommodation.
However, if the individual provides insufficient information to
determine
whether he has a disability and needs accommodation, you must give
him an opportunity to provide the missing information.
The ADA also does not allow you to require documentation that is
unrelated to the particular accommodation or disability, such as
requesting that the individual provide a complete medical history.
Further, if the individual has an obvious disability, you may not
require
him to provide medical certification of his disability. However, you may
be able to request information to verify the need for an accommodation,
unless that need is also obvious.
For example, if a person in a wheelchair requests a desk the wheelchair
will fit under, you cannot ask him to document his disability or the
need
for the accommodation since both are apparent. But, if the same person
requests a modified work schedule, you can ask him to document his
need for the accommodation.
Because of the difficulty of determining whether a particular medical
condition meets the criteria of a disability under the ADA, some
employers choose to accommodate any individual with a serious health
problem, not just those who meet the ADA definition of disabled. The
advantage to this approach is twofold.
First, it may be better employee relations to accommodate all employees
with legitimate medical problems rather than only those who are legally
disabled under the ADA. Second, any efforts at accommodation can be
used as proof of the employer's attempts to comply with the ADA if its
decisions are later challenged. This approach also has drawbacks,
however. In particular, you may set a precedent that could require your
organization to accommodate anyone with medical problems and not just
those who are disabled.
Next week: How to engage in the interactive accommodation
process,
determine the appropriate accommodation, implement the
accommodation, and make sure the accommodation is effective. |
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^^^^^^^^^^^^^^^^^^^^^ From Your HR Matters E-Tips Editors
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Subscribers to the
Personnel Policy Manual and HR Policy Answers on
CD can find more information about the ADA accommodation process in
Serious Diseases, Chapter 203A, note 13.
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chapters,
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