Today marks the 32nd anniversary of the signing of the Americans with Disabilities Act of 1990 (ADA). ADA prohibits discrimination against people with disabilities in employment and requires employers to make reasonable accommodations for them to do their jobs.
Here are five tips for how employers can engage more effectively with employees on disability accommodation requests.
- Create a Written Policy: Make sure your employee handbook includes a disability accommodation policy that clearly describes the interactive process and focuses on the need for communication. Ensure the policy designates a specific person who will handle accommodation requests. This approach helps to ensure that employees will connect with the people in the company who are most qualified in this area.
- Train All Employees: Supervisors are the eyes and ears of the company, and the law states that whatever they know or should know is what the company knows or should know as well. Accommodation requests come in many forms and are not always easy to recognize. They don’t have to be made in writing or through any formal process. If an employee mentions a disability in the context of his or her personal life during regular conversation, that could be used to show that the employer had “constructive knowledge” of the disability.
For example, an employee shares with his supervisor that he struggles to make it to work in the morning due to physical therapy sessions he must attend. That conversation would likely be considered an accommodation request in a courtroom. An untrained supervisor might not recognize the need to initiate the interactive process and might also engage in disciplinary action for the employee that might be considered unlawful retaliation.
Consider training everyone on the accommodation policy. If every employee understands when to seek accommodations, how requests should be made, and who they should be made to, there is a greater likelihood that these situations will be handled appropriately.
- Make Individualized Assessments: Once a supervisor or HR professional becomes aware of an employee’s need for accommodation, there is a legal requirement to engage in an interactive dialogue to determine any job-related limitations, as well as whether—and which—reasonable accommodations apply. Each request requires an individualized assessment that should include suggestions from the employee as well as the manager. Keep an open mind and carefully evaluate each individual’s request and condition.
- Keep Talking: An employer’s obligation does not end after a worker is given a reasonable accommodation. Continue to follow up with the employee and their supervisor to ensure that the accommodation is working. The job conditions and the health of the employee can change. Be sure employees know to inform designated the designated person within the company if their accommodation becomes insufficient.
- Document Conversations: Every communication with the employee regarding the accommodation process should be documented and maintained in their confidential medical file (separate from the personnel file). Every discussion (no matter how short) about accommodation should be documented, as the burden of proving that an interactive dialogue took place falls to the employer.
For many people, fear of saying the wrong thing prevents them from saying anything. During the interactive process, the employer may ask the individual relevant questions that will enable them to make an assessment about an accommodation request, including what type of reasonable accommodation is needed.
Applicants or employees with disabilities are not automatically entitled to reasonable accommodations under the ADA. They are entitled to a reasonable accommodation when their disability requires it, and the accommodation is not an undue hardship for the employer.
In addition to the interactive process, the steps that should be taken to explore reasonable accommodations may include obtaining information from the employee’s medical provider about the employee’s need for an accommodation and the expected duration of the accommodation. Possible accommodations include schedule changes, physical modifications to the workplace, remote work, and special or modified equipment.
The ADA’s three-part definition of disability does apply to COVID-19 in the same way it applies to other medical conditions. The ADA definition of “disability” includes the following:
- An actual disability, which is a physical or mental impairment that substantially limits a major life activity (such as walking, talking, seeing or hearing).
- A history or record of an actual disability (such as cancer that is in remission).
- A perception that a worker has a disability or is regarded as having a disability.
A worker’s COVID-19 illness will not be considered an ADA disability if the worker experiences mild COVID-19 symptoms that resolve in a few weeks. The Department of Justice and the Department of Health and Human Services (HHS) issued joint guidance on disabilities related to “long COVID” for people with long-term effects of COVID-19. Workers with disabilities stemming from COVID-19 are protected from employment discrimination and may be eligible for reasonable accommodations.