Perspectives

ADA-What Employers Need to Know

Many employers may be aware of the Americans with Disabilities Act (“ADA”), but may not understand what their specific responsibilities are when it comes to the ADA. For starters, the ADA defines disability as a physical or mental impairment that substantially limits one or more major life activities, thus interfering with the employee’s ability to perform their job. Major life activities include walking, sitting, standing, lifting, speaking, seeing hearing, learning, etc. This also includes major bodily functions such as circulatory, endocrine, hematic, cellular, and reproduction, among others.

Whether an employee is injured at work or while engaging in activities outside of work, or is navigating a mental or emotional hardship, the employee may fall under this ADA definition of disability, even if temporarily. If an employee requests an accommodation, employers are then responsible for engaging in the interactive process (that’s legalese for an open and honest dialogue) with the employee to find a suitable accommodation to keep them working. The goal of the ADA is to keep employees productive in their roles without undue hardship on the employer. You achieve this by clear communication and following the interactive process which will help both you the employer, and the employee in question, find a reasonable accommodation.

After establishing there is a need, the next step in the interactive process is an official accommodation discussion, outlining what tasks or light duty expectations the employer has for the employee. This accommodation should be aligned with their doctors’ recommendations, to the extent possible.

We have created a checklist to get you on the path for a successful interactive process. We have additional resources that can help you navigate those steps if, or when, this situation arises for your company.

 

ADA Reasonable Accommodation Checklist:

When an employer has information that a disability may be interfering with an employee’s ability to perform their job, the following steps may be taken:

Identify the need for accommodation.

Unless there is an observable basis or other objective evidence that the employee has an impairment that is affecting job performance, do not inquire about the need for an accommodation.

• Ask the employee if there is any way the employer can assist the employee in the performance of job tasks. No reference to the Americans with Disabilities Act (ADA) is necessary at this point.
• If the employee declines the need for assistance, no further action is necessary. The employee may be held to the same performance and conduct standards as all other employees.

Engage in the Interactive Process.

If the employee discloses the need for assistance due to a disability, continue with the following steps:

• Determine whether there is a medical documentation or other reliable, objective information to conclude that the employee has a physical or mental impairment that substantially limits a major life activity.
• Review the employee’s job description and determine the essential functions of the job. Identify nonessential job tasks that may be reassigned to other employees for purposes of accommodation.
• Discuss possible accommodations with the employee, their health care providers, and supervisors who have knowledge of the worksite and the job. Engage other professionals, such as the employee assistance program (EAP) counselors or a vocational or rehabilitation counselor as appropriate.
• Determine whether the employee’s preferred accommodation creates an undue hardship for the employer. If so, suggest and discuss alternative accommodations.

Obtain Medical Information (if necessary).

When the disability and/or the need for accommodation is not obvious, the employer may ask the individual for reasonable documentation about their disability and functional limitations.

• If documentation from a health care provider is necessary, have the employee sign a medical release form.
• Provide the employee with an ADA medical accommodation certification form to be completed by their health care provider.
• Provide a copy of the job description to the health care provider and have the provider indicate what major life activity or activities are limited.

Identify the Existence of a Direct Threat.

Direct threat under the ADA is “a significant risk of substantial harm.” An assessment of direct threat should be based on valid medical analyses and/or other objective evidence, not on speculation. This is a very narrow exception that may warrant denial of an accommodation and/or termination of employment.

• Determine whether the employee is a direct threat to themselves or to others in the performance of the job tasks.
• Document the direct threat by identifying the risk caused by the limitation, the potential harm that could result, and the medical or observable facts on which the risk is based.

Retain Documentation

• Identify and document the reasonable accommodation given, the reason no accommodation was needed or why the accommodation request was denied.
• Keep all medical information in a file that is separate from the employee’s personnel file.

Additional resources to assist employers in understanding their responsibilities under the ADA:

Job Accommodation Network (JAN)

www.askJAN.org    1-800-526-7234 (voice)

*If you are deaf, hard of hearing, or have a speech disability, please dial 7-1-1 to access telecommunications relay services. JAN is a free, confidential service from the U.S. Department of Labor’s Office of Disability Employment Policy that provides individualized accommodation solutions and technical assistance on the ADA. Among the areas that JAN can address are:

• Accommodation options and low-cost solutions
• Hiring, retaining and promoting qualified employees with disabilities
• Employer responsibilities under the ADA
• Addressing accessibility issues, including accessible technology

Equal Employment Opportunity Commission (EEOC)

www.eeoc.gov        1-800-669-4000 (voice)

*If you are deaf, hard of hearing, or have a speech disability, please dial 7-1-1 to access telecommunications relay services.

The EEOC enforces the ADA’s employment provisions. The section of its website titled “Disability Discrimination” provides access to numerous publications, including several specifically designed to answer employer questions and concerns.

U.S. Department of Justice (DOJ) ADA Homepage

www.ada.gov   1-800-514-0301 (voice):

If you are deaf, hard of hearing, or have a speech disability please dial 7-1-1 to access telecommunications relay services.

The ADA homepage includes many excellent resources for employers. The “ADA Business Connection” section of the site includes business briefs and tax incentive information.

Americans with Disabilities Act National Network

www.adata.org     1-800-949-4232 (voice)

The Americans with Disabilities Act National Network, sponsored by the U.S. Department of Education’s National Institute on Disability, Independent Living, and Rehabilitation Research, consists of 10 regional centers and an ADA Knowledge Translation Center which provide ADA information, training and technical assistance across the nation.

Failing to make reasonable accommodations for your employees can leave you open to unnecessary risk. Consulting with the Employment Law team at Wagner, Falconer & Judd can set you, and your team, up for success.