Commentary: Although the Americans with Disabilities Act has been in effect for 25 years, many employers still struggle with how to comply with the law and how to best help employees with disabilities perform their job duties.
Adding to the challenge are the regulations passed by the Equal Employment Opportunity Committee four years ago to implement the ADA Amendments Act. These regulations significantly changed how a disability is determined and created new challenges for employers. Previously, when faced with an ADA issue, employers focused on whether an employee was disabled, using detailed analysis to determine what constituted a disability. Now, due to the regulatory changes, employers attention must shift to what actions may be needed to help employees with disabilities stay on the job or return to work.
Employers are realizing that compliance with the law means understanding what reasonable accommodations may be needed to address a disability. Since all disabilities are not alike, each needs to be evaluated individually in order to determine a particular solution. Providing a way for disabled employees to do their jobs successfully is a primary obligation for employers under the law.
Its no surprise then that companies wonder if they are indeed in compliance with the law. If the EEOC determines that reasonable accommodations are not being provided for qualified employees, companies are at risk for fines or other penalties.
Here are five suggested best practices that may help employers fulfill their responsibilities under the law:
1. Ensure that an interactive process is in place. This will facilitate communication and dialogue among everyone involved. When deciding how to best help a disabled employee continue to do his or her job, employers need to evaluate the disability, the employees job requirements and possible accommodations. A number of people should be involved in these discussions including the employee, the employees supervisor, the physician, and the human resources department, among possible others. The purpose of the interactive process is to:
- Identify the accommodation request;
- Determine if the employee has a disability;
- Obtain the restrictions and limitations related to the employees essential job functions; and
- Identify and implement any reasonable accommodations, and monitor for success.
Because the interactive process is a requirement under the ADA, employers will be better protected if they can show that they engaged in the process even if the end result is that no accommodation is possible. If an employer is unsure about what the process requires, it may be helpful to partner with a benefits carrier who understands the interactive process and who can offer advice and support in complying with the regulations.
2. Train managers and supervisors. Since managers are typically the first contact for an employee with a disability, employers should provide training for front-line managers so they can understand what the process requires. Failure to identify or provide reasonable accommodation is considered discrimination under the ADA. Managers who are not properly educated regarding the ADA can create compliance issues for the employer. To avoid these issues, ADA training for managers should include:
- How to interact with employees who request an accommodation;
- How to recognize when an employee is requesting an accommodation;
- What questions they should avoid asking an employee;
- How to document legitimate and nondiscriminatory reasons for employment actions;
- Where to maintain medical information (separately from the personnel file); and
- What the employers process is for an accommodation request.
Ensuring managers know the companys policies and procedures and follow them consistently is key to an organizations successful compliance with the ADA.
3. Have the right disability policies and practices in place. Its important for a company to develop consistent and compliant policies and practices related to disabilities in the workplace and how they are accommodated. Employers should realize that one blanket policy isnt sufficient to deal with all disabilities. Employers should be especially careful to avoid policies that require an employee to be 100% recovered before being able to return to work or policies that specify automatic termination if an employee is unable to return to work after a specific period of leave. In fact, the EEOC has collected multi-million dollar settlements against employers because of these kinds of inflexible leave policies.
Policies should express the employers commitment to compliance with the ADA and provide clear instruction for employees on when and how to request an accommodation when needed. In addition, they should reflect the flexibility required by the ADA by providing for individualized assessment of each request. This flexibility is necessary because an employer cannot take a one-size-fits-all approach to workplace accommodations. For example, one worker may require a temporary leave as a reasonable accommodation while another can remain on the job while recovering if the employer provides more rest breaks, reduced hours or light duty.
Although having a flexible policy for accommodating disabled employees is crucial, it must be coupled with consistent application of the policy at every business site. This helps ensure that all employees with a qualified disability are treated the same and no discrimination occurs.
4. Identify ADA issues early on and recognize when there is a need for reasonable accommodation. With the revised regulations and the EEOCs focus on enforcement, it is more important than ever for front-line managers to identify potential ADA issues. Recognizing how a disability affects an employees ability to perform their essential job functions leads to the interactive process required under the law.
Not recognizing or accommodating ADA issues can be very costly. Penalties for non-compliance are generally greater than the cost of providing accommodations. Fifty-six percent of accommodations usually cost nothing, while the rest typically average less than $500. In addition, significant penalties can have long-lasting, negative effects on a companys workforce and bottom line. The recent EEOC focus on ADA enforcement has resulted in hefty fines for employers who are non-compliant. In 2014, for example, the EEOC obtained $95.6 million in total monetary relief through its ADA enforcement program.
5. Understand what medical information can be requested. As part of interacting with a disabled employees physician and other health care providers, employers must make certain they are asking only for information that is job-related and consistent with business necessity. Because some state disability protection laws are even more restrictive regarding what medical information can be shared, employers with multi-state locations need to be aware of what each state requires. However, just because there are restrictions on what can be requested doesnt mean employers should stop asking for documentation. Collecting the appropriate medical information is critical for an employer to make a well-informed decision regarding the employees request for accommodation.
Obtaining medical information can be confusing for employers and could leave them open to potential litigation. That is why working with a benefits provider who is knowledgeable and can provide support in determining how to comply with the ADA when requesting medical information as part of the interactive process is important.
Obviously, employers want to avoid possible discrimination suits. However, many employers have been unsuccessful in doing so. For instance, in fiscal year 2014 alone, 25,369 disability discrimination charges were filed with the EEOC.
Using these five best practices can help employers navigate through the sometimes confusing ADA regulations more easily and ensure that they are protecting their disabled employees as well as their business.
Daris Freeman is assistant counsel with Unum.
 Job Accommodation Network, Workplace Accommodations: Low Cost, High Impact (Office of Disability Employment Policy, 2012).
 U.S. Equal Employment Opportunity Commission press release EEOC releases fiscal year 2014 enforcement and litigation data (accessed July 16, 2015) http://eeoc.gov/eeoc/statistics/enforcement/ada-charges.cfm
 U.S. Equal Employment Opportunity Commission, Charge Statistics FY 1997 through FY 2014 (assessed July 16, 2015) http://eeoc.gov/eeoc/statistics/enforcement/ada-charges.cfm
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