With changes to the Americans with Disabilities Act, or ADA, and disability-related employment claims on the rise, employers need to be ahead of the curve with regard to reasonable accommodation in the workplace.
There used to be a time when employers strictly held all employees to job expectations without exception or question. No longer. Now when an employee with physical or mental impairments is not successful, the employer needs to be prepared to show the employee had a process to request accommodation and also articulate what efforts were made to assist the employee. The new question is, “Is there anything we can do to help you be successful?”
It is important to note even small employers need to be aware of reasonable accommodation obligations. The federal ADA applies to businesses with more than 15 employees, but the comparable Michigan statute applies to any company with more than one employee.
For employers of all sizes, the key to avoiding legal issues is to have informed leaders handling accommodation situations and to have a well-defined accommodation process. With the right people and the right process, it is possible to successfully work through even the thorniest situation.
It is important for businesses to take the following steps.
1. Appoint someone within your company, preferably a human resources professional, to be the reasonable accommodation liaison. The company should invest in training this individual to be knowledgeable about the ADA and also provide him or her access to legal counsel to discuss particularly complicated situations.
2. Because many accommodation requests come first to direct supervisors and managers, leadership should be trained on the basics of the law and the company’s accommodation process. Too often, the human resources department hears about an accommodation months after a supervisor unilaterally decided to provide it. Or, worse yet, a supervisor denies an accommodation request without following any sort of interactive process with the employee.
3. Work with an attorney to draft a reasonable accommodation policy that is incorporated into the employee handbook. The policy should explain the process for requesting accommodation and specifically direct employees to the appointed liaison.
4. Proactively invest in a step-by-step accommodation process that includes medical forms and draft communications. Because time off work can be a reasonable accommodation, the process should also include a (non-FMLA) medical leave procedure.
5. Encourage the reasonable accommodation liaison and leadership to work collaboratively. Most accommodation requests require an analysis of the employee’s required job functions, as well as how an accommodation might impact the department. It is impossible to do that well without cooperative communication and clear documentation.
6. Be intentional about how the company establishes and communicates job requirements. Ultimately, even with accommodation, an employee must have the ability to perform essential job functions. But is regular and predictable attendance required for this position? Are physical requirements on the job restriction based on actual observation of the position? Are employees required to perform work on-site? Do we find “light-duty” work for some employees but not others? Many employers do not consider these questions until an accommodation request is made, and the answer is not always what they would like it to be.
7. Create a culture of shared success. Although the legal requirements of disability laws can be burdensome on employers, there is a silver lining. A good, reasonable accommodation process emphasizes a healthy approach to workplace expectations: All employees, regardless of disability, can be expected to successfully perform the job duties assigned to them. Equally, employers are invested in doing what they can to help employees achieve that success. That is a foundation for a successful workplace culture that is significantly less likely to result in legal claims.