Employers and employees working together under ADA guidelines (Part 3 of 4)

The Americans With Disabilities Act (ADA) has been a topic of discussion for HR professionals since it was implemented in 1990. Initially, the act did not give clear guidelines, but included information about expectations for employers and employees working together to create accommodations for employees when necessary

The original act left employers with a lot of questions and we are now receiving clarification on key points. One of the expectations when accommodations are needed, is that it be an interactive process.  This means that the employee and the employer must work together, establishing the best approach that doesn’t put undue hardship on the employer and allows the employee to maintain an active employment status with the company.

For the interactive process to be successful, both employee and employer should be open to varied ideas and be willing to work together. Managers may need training in this area as to what are acceptable and not acceptable questions regarding accommodations.

Sometimes the employee has an idea about how they want to be accommodated, but this may not be reasonable for the employer. For example, an employee may want to work from home, but the employer does not have employees that telecommute or the essential job functions cannot be done from home. This would not be a reasonable request.  If an employee makes such a request, it is always appropriate for the manager to offer other suggestions. We recommend that employers be open to ideas and, if the accommodation is not available, be willing to explain why their request can’t be handled in that way.

Employees may not always know what accommodations are available to them. Sometimes accommodations require a little bit of creativity, like allowing space for an employee to do stretching for an injured back, or bringing in a freezer to keep ice packs cold. For this to happen however, the employee needs to provide information about why they can’t perform certain job duties. One suggestion is that the employee fill out a “request for reasonable accommodation.”  This type of request needs to include information about the impairment and how it impacts the employee’s ability to perform and what the employer may be able to do to help. A request like this is a great way to start the interactive process between employee and employer.

Every ADA situation will be different and it is important for both employee and the employer to maintain good communication throughout the process.. Employers should carefully consider every request and employees must notify their employer as soon as a need arises.

BCN Services is prepared to assist in the entire ADA process and encourage our clients to reach out to us with any questions or concerns. Please see the following case studies for examples of how ADA decisions have affected other employers:

ADA Case studies from www.ADA.gov:

Marytza Golden v. Indianapolis Housing Agency

Marytza Golden alleges that Indianapolis Housing Agency (“IHA”) violated Section 504 of the Rehabilitation Act of 1973, 29 U.S.C. § 794 (“Section 504”), when IHA denied her request for additional, unpaid leave to complete her cancer treatment and terminated her upon expiration of 16 weeks of medical leave (including 12 weeks of Family and Medical Leave Act (FMLA) leave).  IHA maintains that, under its medical leave policy, it is proper to terminate all employees who are unable to return to work after taking 16 weeks of medical leave regardless of whether an employee may need additional leave because of a disability.  IHA also maintains that, because Ms. Golden was unable to perform the essential functions of her job at the end of 16 weeks of leave, she was no longer “qualified” for the position and termination was permissible.

The United States respectfully submits this Statement of Interest to clarify the proper interpretation of Section 504 and the Americans with Disabilities Act (“ADA”) with respect to an employer’s obligation to consider a request for additional, unpaid leave as a reasonable accommodation and its obligation to evaluate whether an employee who seeks an accommodation is qualified.

The United States files this brief to help clarify the appropriate standard to determine whether Ms. Golden is a qualified individual with a disability entitled to a reasonable accommodation under the law.  The appropriate standard is to assess whether Ms. Golden is able to perform the essential functions of the job as of the end of the requested leave period that is found to be a reasonable accommodation—not during the time period she was on disability-related leave.

Settlement agreement between the United States and 360 Credit Union

  1. The United States initiated its investigation of THE CREDIT UNION after receiving a complaint made by an individual who is deaf or hard of hearing. The complainant alleged that THE CREDIT UNION is in violation of title III of the ADA because it maintains a policy against accepting third party calls, including relay calls.
  2. The United States has concluded that THE CREDIT UNION violated title III of the ADA. THE CREDIT UNION denies that it violated title III of the ADA or any other law.
  3. The Attorney General of the United States is authorized to enforce title III of the ADA by seeking monetary relief for aggrieved persons, civil penalties, and full compliance with title III’s provisions, such as requiring public accommodations to make reasonable modifications to policies, practices, and procedures and provide auxiliary aids and services, 42 U.S.C. § 12188(b); 28 C.F.R. § 36.504. The Attorney General may commence a civil action to enforce title III in any situation where he has reasonable cause to believe that a pattern or practice of discrimination exists or a matter of general public importance is raised. 42 U.S.C. §
  4. Title III of the ADA and the title III implementing regulation prohibit discrimination on the basis of disability by public accommodations. 42 U.S.C. § 12182; 28 C.F.R. § 36.201. Specifically, title III requires public accommodations to provide auxiliary aids and services when necessary to ensure effective communication with individuals with disabilities. 42 U.S.C. § 12182(b)(2)(A)(iii); 28 C.F.R. § 36.303. Title III also requires public accommodations to make reasonable modifications to policies, practices, or procedures when such modifications are necessary to afford goods, services, facilities, privileges, advantages, or accommodations to individuals with disabilities. 42 U.S.C. § 12182(b)(2)(A)(ii); 28 C.F.R. § 36.302(a).

KariStanley_6698
Kari Stanley, HR Generalist