HR Compliance

The Cans and Can'ts of ADA

By

Weylin Miller

| Sep 6, 2018

According the U.S. Census Bureau’s most recent data, over 10% of people under 65 have a disability. With that in mind, it’s rare a company or team doesn’t include an individual with a disability. Are you confident you’re meeting the needs of your employees?

ADA in a nutshell

The ADA, above all, prohibits discrimination against individuals with disabilities in all areas of public life. It protects the rights of employees and job seekers with disabilities. This includes employment and hiring activities.

The ADA defines a person with a disability as someone who:

  • has a physical or mental impairment that substantially limits one or more major life activities
  • has a record of such an impairment
  • or is regarded as having such an impairment

Understanding reasonable accommodation

Reasonable accommodation is a modification or adjustment made by the company to an employee’s work environment, which enables an employee to perform his or her position’s duties despite having a disability. Because every person with a disability is unique, every reasonable accommodation is different as well.

A few examples of reasonable accommodation include:

  • A salesperson is given a stool to relieve fatigue caused by Lupus.
  • A writer who struggles with carpal tunnel syndrome is given voice-to-text software in order to relieve typing difficulties.
  • An accountant who had surgery on her knee and has difficulty walking is relocated to a desk on the ground floor in order to avoid the stairs.
  • A park ranger is allowed to bring his therapy dog on patrol in order to assist with his diagnosed depression.
  • A telemarketer is allowed to stand and stretch for five minutes every hour in order to relieve chronic back pain.

Any reasonable accommodation for individuals with disabilities must be effective, which means the individual must be able to perform the essential functions of the job. For example, the essential functions of certain jobs require employees perform the work on-site, such as food servers or in-store cashiers. Therefore, for these types of positions an accommodation allowing an employee to work from home would not be effective, as the employee could not perform the essential functions of the job.

Reasonable accommodations must not cause an undue hardship to the company. Undue hardships could include changing the building’s physical infrastructure or spending a large amount of money on a new technology. Once an employee has identified his or her disability and any doctor’s recommendations are considered, the company will choose the best way to accommodate the individual that does not create an undo hardship for the organization in question.

Everyone has a part to play

So what role do leaders play? What about HR business partners? Identifying the disability, engaging the employee and implementing a reasonable accommodation can be broken down into four steps. Before taking a single step, however, every leader should become familiar with their company’s policy regarding ADA.

STEP ONE: Awareness. Disabilities aren’t always easy to spot (such as hearing loss or mental disabilities) and your employees may not notify their supervisor directly. Sometimes, a disclosure comes in the form of a simple complaint such as, “This chair really hurts my back!” Leaders and HR partners should pay attention to these types of comments. If a manager or supervisor notices first, bring HR in as soon as possible.

STEP TWO: Conversation – what’s called the interactive process. Talk with the employee regarding his or her needs and maintain communication throughout the entire process. This is typically handled by an HR partner, or sometimes by a manager with direction from an HR partner. Engaging in the interactive process is a critical step in complying with the ADA. Employers should listen to the employee’s suggestions of possible accommodations, but the employer is responsible for choosing a reasonable accommodation as long as it is effective and reasonable. Always handle every case professionally and seriously during the interactive process.

STEP THREE: Verification, which typically occurs during the interactive process. When a disability, or its limitations are not obvious, the employer may ask the individual for reasonable documentation about the disability and functional limitations. Never make an assumption that the employee isn’t disabled. Employers may seek to verify the employee’s condition qualifies as a disability under the ADA. This step is best left to your HR partner. The ADA lays out strict guidelines on what can and can’t be requested from an employee regarding a disability and what qualifies as reasonable documentation.

For example, reasonable documentation means that the employer can’t request full medical records from the employee. An employer can only require only the minimum documentation that states that the employee has an ADA-covered disability, and that the disability requires a reasonable accommodation.

An employer may require that the documentation comes from an appropriate health care or rehabilitation professional. The employer should specify what types of information they are seeking regarding the disability, its functional limitations, and the need for reasonable accommodation.

Verification is optional, however, it is best practice. An employer can simply discuss the nature of the disability with the employee and how it limits the employee. Reasonable accommodations do not require verification.

STEP FOUR: Implement the reasonable accommodation. Regardless of who your company delegates to determine the reasonable accommodation, it’s typically the responsibility of the employee’s direct supervisor to ensure that the accommodation is available to the employee and is being used.

Final thoughts

Regardless of your role in the process, always:

  • Become familiar with your company’s policy
  • take each notice of disability seriously
  • get your HR partner involved as soon as possible

Remember, the goal of the ADA is to give individuals with disabilities the same rights and opportunities as everyone else. These individuals are your co-workers, your team members and your employees; and they deserve the opportunity to be successful.

Disclaimer: This blog includes general information about legal issues and developments in the law. Such materials are for informational purposes only and may not reflect the most current legal developments. These informational materials are not intended, and must not be taken, as legal advice on any particular set of facts or circumstances. You need to contact a lawyer licensed in your jurisdiction for advice on specific legal problems.

About the Author

Weylin Miller

As an instructional designer, Weylin Miller is responsible for researching, designing and building e-learning courses on compliance and leadership. He brings more than half a decade of experience in onboarding and training managers and new hires, as well as continuing education for existing employees. Miller holds a bachelor’s degree in philosophy and a master’s degree in secondary education, both from the University of Central Oklahoma.

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