Avoid These 10 ADA Compliance Mistakes
The ADA Amendments Act of 2008 broadened the definition of disability previously established by the ADA. This law effectively expands the group of people who qualify as having a disability. The amendments put more pressure on employers to provide reasonable accommodations. In addition, it creates more potential liability for companies that are not in careful observance of the law. This article provides common mistakes to avoid as well as helpful guidance for employers to follow.
Common ADA Compliance Mistakes HR Professionals Make
In navigating the ADA, HR professionals should be careful to avoid these common mistakes.
Ending Accommodation Dialogue
If no reasonable accommodation can be found to help an employee perform an essential job function, do not end the accommodation dialogue. Instead, employers should consider other accommodations. These may include working part time, reassigning the employee, or providing an unpaid leave of absence.
Taking a Manager’s Word about Essential Functions
Do not take a manager’s word that a function is, in fact, essential. This will be contested if the issue goes to court. Therefore, employers should investigate themselves to determine whether the function in question is essential or not.
Using the “Undue Hardship” Provision Too Liberally
Do not use the undue hardship ADA provision too liberally. For instance, the court will not accept reasons such as cost or other employees’ reactions as undue hardships for providing a reasonable accommodation.
Discussing Details of a Disability With an Employee’s Manager
Do not discuss details of an employee’s disability with their manager. The manager should generally only know the nature of the accommodation being provided. An exception is if the disability affects how the manager will interact with the employee, such as a hearing impairment.
Failing to Consider Other Applicable Laws
Consider that there may be other laws applicable to an employee’s disability. For instance, a disability under the ADA often also qualifies as a serious health condition under FMLA. Therefore, FMLA laws and provisions might come into play.
Rejecting an Employee’s Request Because it Seems Unreasonable or Impractical
Do not reject an employee’s request just because it seems unreasonable or impractical. Employers should still engage in a dialogue with the employee to see if a solution can be reached. Even if you still determine that the request is not feasible, it is important to follow the full process to reach that decision. Do not forget to document the process completely.
Eliminating Essential Functions as an Accommodation
Do not eliminate essential functions as an accommodation, even for a limited period. Though sometimes this is a feasible solution, it can also make it harder to argue later that the function is essential for this or any employee. In addition, other employees may argue that the function should not be essential for them either, or claim discrimination. To do this safely, emphasize that suspending or relaxing the essential function is temporary. Document the specific reasons for this action to avoid discrimination claims from other employees.
Failing to Properly Document a Denied Accommodation Request
Always properly document a denied accommodation request. Document the process followed and the reason for the denial. This will help your defense in the event of litigation.
Taking Performance Into Account When Deciding if an Accommodation is Reasonable
Do not take the employee’s performance into account when deciding if an accommodation is reasonable. Treat all workers the same in the process—whether they are high performers or underachievers.
Not Considering Reasonable Accommodations Because the Employee Doesn’t Have Solutions
Even if the employee does not offer any specific ideas about accommodating, you still must consider their request. If an employee tells HR that he or she needs an accommodation, it is the employer’s responsibility to investigate potential accommodations.
What Employers Can Do To Protect Themselves From Liability
Keep Job Descriptions Detailed and Accurate
Keep your job descriptions up to date. Make sure that hey include the essential functions of each job. Remember that employers generally have a responsibility to reasonably accommodate an employee who cannot perform an essential function. However, an employer does not have to eliminate an essential function of a job position as part of a reasonable accommodation.
Essential functions in a job description can be one factor in legally proving that the task is indeed essential to the job. These functions can include physical requirements like lifting or standing and stamina requirements like working long hours or weeks.
Develop an Accommodation Policy
Creating and distributing a reasonable accommodation policy can demonstrate your commitment to honoring the ADA. The policy should direct all reasonable accommodation requests to HR rather than to supervisors, as HR professionals are better equipped to deal with the nuances and legal risks of handling these types of requests.
Even though you direct employees to HR, supervisors still need to know how to handle the situation if a reasonable accommodation is requested of them. They should not respond either yes or no to the request, regardless of how feasible it may or may not be, but should instead refer the situation to HR. In addition, supervisors must be trained to handle potential ADA situations that may arise during a job interview or in their daily work with employees.
Stay ADA Compliant with MyHRConcierge
Now more than ever, the burden has shifted to employers to provide reasonable accommodations when possible and show care in handling disability-related issues in the workplace. It is important that you are familiar with the nuances of the ADA and the ADA Amendments Act to keep your company in compliance and avoid costly lawsuits and penalties. MyHRConcierge offers consultation and compliance services for businesses in who need to comply with the ADA and other laws that affect the workplace.