An Expanded ADA Means New Small-Business Responsibilities
The Equal Employment Opportunity Commission (EEOC) recently reminded employees of the need to engage in the “interactive process” when employees raise their medical conditions and request changes to their work environment.
Title I of the Americans with Disabilities Act (ADA) of 1990 and the 2008 ADA Amendments require employers to provide reasonable accommodations to “qualified individuals with disabilities,” unless doing so would require undue hardship. Generally, the larger your organization, the harder it will be for you to claim an accommodation would create a hardship to your company.
Expanding the Definition of Disability
Amendments to the ADA in 2008 significantly expanded the definition of “disability.” Conditions that substantially limit a life activity entitle an employee to protection under the ADA.
Experts agree that the impact of the Amendments means that human resource personnel should not consider if the employee is disabled, but instead focus on “How can we best accommodate the person?” According to the EEOC, "The question of whether an individual's impairment is a disability under the ADA should not demand extensive analysis. The definition of disability shall be construed in favor of broad coverage of individuals, to the maximum extent permitted by the terms of the ADA.”
How do companies engage in the interactive process needed to help their employees continue working?
First, learn about symptoms of the medical condition. For example, if fatigue is an issue, can you provide a chair so that the employee can work sitting down instead of standing?
Also be aware that activists who specialize in helping employees receive accommodations discourage employers from asking for medical documentation. They believe in the vast majority of instances, medical documentation is of no help in making the accommodation. Instead, they believe you should simply ask the employee what he or she needs to perform the job.
Many human resource practitioners do not agree, however, and suggest you obtain documentation from the employee’s doctor. In most cases, I side with the activists. I believe a frank discussion is enough -- and demanding medical documentation can create an adversarial relationship your business needs to avoid.
Next, consider if the employee can, with or without reasonable accommodations, perform the essential job functions.
Avoid “regarding” the employee as disabled by making comments like “her emotional reactions” or “his disability,” because the employee may not perceive him or herself as disabled, and you may trigger the “regarded as” category.
Defining a Dialogue
Finally, examine Webster’s Dictionary. “Interactive” means “acting on each other.” This is a dialogue, which means you talk to the employee, and the employee talks to you. “Process is defined as “a series of steps or operations toward a desired result or product.” This means the first accommodation you make may not work -- you may need several adjustments.
Here are some examples of accommodations:
- Acquiring or modifying equipment
- Adjusting work hours
- Changing tests, training materials, or policies
- Job restructuring
- Job coaches
- Restructuring travel with Skype or other communication devices
- Making existing facilities accessible
- Part-time or modified work schedules
- Providing qualified readers or interpreters
- Reassignment to a vacant position
- Use of paid then unpaid leave
Document all accommodations when you make them. Inform others in the workplace only if they need to know. For example, you may ask a coworker to assist in lifting more than a certain weight.
You don’t need to explain the medical condition or even use the words “reasonable accommodation.” Simply explain that the employee needs assistance.
If you need help, hire an ergonomist or a human resources consultant to assist you. The EEOC is very serious about ensuring employers live up to their obligations to engage in the interactive process. Failing to do so can mean major employment trouble for your small business.
