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HR MATTERS E-TIPS
THIS WEEK'S E-TIP: Six Steps to Effective ADA Accommodations (Part 2 of 2)
October 23, 2007, Volume 9, No. 43
Published by Personnel Policy Service, Inc.
"Your Policy and Compliance Experts Since 1972"
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THIS WEEK'S E-TIP: Six Steps to Effective ADA Accommodations (Part 2
of 2)
The ADA accommodation process can be intimidating since you have to
weigh medical, practical, and legal considerations. But, if you follow a
methodical process to implement an accommodation, you can enhance
your disabled employee's working conditions and ensure compliance
with the ADA. |
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THIS WEEK'S E-TIP: Six Steps to Effective ADA Accommodations
(Part 2 of 2)
In last week's E-Tips, you found out the four basic principles
of
accommodation and the first two steps (out of six) you should
take when
faced with an employee who needs an Americans with Disabilities
Act
(ADA) accommodation. (If you missed that issue, please go to:
http://ppspublishers.com/ez/html/101607txtb.html for a
copy.)
This week, you will learn the remaining four steps: how to
engage in the
interactive accommodation process, determine the appropriate
accommodation, implement the accommodation, and make sure the
accommodation is effective.
Step Three: The Interactive Process
Once you have established that the person is disabled and needs
an
accommodation, the Equal Employment Opportunity Commission
(EEOC) encourages you to engage in a flexible, interactive
process with
the disabled individual. Working with the individual, you should
attempt
to identify both the precise limitations resulting from the
disability and the
potential reasonable accommodations that could overcome those
limitations.
To this end, the EEOC, in its Interpretive Guidance to the
ADA
regulations, recommends the following process:
- Analyze the particular job involved and determine its
purpose
and essential functions.
- Consult with the individual to determine the precise
job-related
limitations imposed by the disability and how the limitations
can be
overcome with a reasonable accommodation.
- With the individual, identify potential accommodations and
assess the effectiveness each would have in enabling the
employee to
perform the essential functions of the position.
- Consider the individual's preference for a particular
accommodation and select and implement the accommodation that
is
most appropriate for both the individual and the employer.
In addition, in order to find possible accommodations, you
also may need
to consult the individual's doctor, rehabilitation specialists,
and others
with expert knowledge about dealing with the particular
disability.
Most courts agree that an employer's failure to engage in the
interactive
process is not, by itself, a violation of the ADA. Clearly,
however, if you
do not reach an effective accommodation, the fact that you did
not
engage in an interactive dialogue most likely will be used
against you.
Reasonable accommodations may include:
- Modifying the application process;
- Making existing facilities readily accessible to and
usable by
employees with disabilities;
- Job restructuring;
- Part-time or modified work schedules and leaves of
absence;
- Acquisition or modification of equipment or devices;
- Appropriate adjustment or modification of examinations,
training
materials, or policies;
- Provision of qualified readers or interpreters; and
- Reassignment to a vacant position. Reassignment to a
vacant
position should be considered only when an accommodation in
the
disabled person's current position would pose an undue
hardship.
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Step Four: Determine the
Appropriate Accommodation
In some cases, the interactive process will yield more than one
potential
accommodation. Accordingly, the next step in the process is to choose
one that will allow the disabled person to perform the job. The EEOC
regulations suggest that you should give consideration to the preference
of the disabled individual. However, you do not have to provide the best
accommodation available or the one specifically requested by the
disabled individual. You only have to provide an effective
accommodation that meets the job-related needs of the individual. Thus,
if one accommodation is less expensive or easier to provide, it will be
acceptable as long as it allows the person to perform the job
effectively.
In addition, you do not have to provide an accommodation if doing so
would create an "undue hardship." However, the undue hardship
standard is very tough to meet. It requires employers to show that the
accommodation involves significant difficulty or expense; is unduly
extensive, substantial, or disruptive; or would fundamentally alter the
nature or operation of the business. As a result, this exception should
be
thought of as a last resort for employers.
Step Five: Implement the Accommodation
Once the accommodation has been identified, you should implement it
as soon as possible to allow the disabled individual to function
effectively
in the job. Although the ADA does not specify a particular time period
for
responding to accommodation requests and providing accommodations,
the EEOC has indicated that employers should "act promptly." Any
unnecessary delays could result in an ADA violation.
When providing an accommodation, the ADA prohibits your disclosure to
other employees of any medical information, including the fact that an
employee has a disability that is being accommodated. Thus, you
cannot explain why you are making the job modifications or treating an
employee differently. However, according to the ADA regulations, you
can tell the disabled employee's supervisor about necessary restrictions
on the work or job duties and about necessary accommodations.
Note, too, that you cannot require a disabled individual to accept an
accommodation. However, if the person cannot perform the essential
functions of the job without the accommodation and then refuses the
accommodation, he is not considered qualified for the position and
therefore may be terminated. If the person refuses the accommodation,
document your attempts to provide the accommodation. In fact, as a
general practice, you should document all of the steps you take to
accommodate a disabled individual.
Step Six: Make Sure the Accommodation is Working
A final important point about accommodating disabled employees is that
your obligation to accommodate may extend beyond the first attempt. In
fact, according to the EEOC, you must consider each request for
reasonable accommodation, determining whether the accommodation is
necessary, would be effective, and if effective, would present an undue
hardship. Further, if a reasonable accommodation turns out to be
ineffective and the employee with a disability remains unable to perform
an essential job function, you must consider whether an alternative
reasonable accommodation exists that would not pose an undue
hardship.
Accommodation Can Be Good Business
The idea of accommodating a disabled individual under the ADA can be
overwhelming. In addition to having to master a new vocabulary, you
may feel as though you must be a legal expert, a physical therapist, and
a building accessibility specialist to determine what accommodations are
appropriate.
However, as a practical matter, disabled individuals often know what
accommodations they need to work effectively, and most
accommodations are relatively inexpensive. Thus, by following the six
steps discussed in this and last week's E-Tips, you can both comply with
the
requirements of the ADA and show disabled individuals your
commitment to providing a productive and accessible workplace. |
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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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