Even though the Equal Employment Opportunity Commission (EEOC) hasn’t issued final regulations on the ADA Amendments Act (ADAAA) yet, you still must comply with the ADAAA, which took effect at the beginning of last year. In this article, we’re addressing the defense of claims under the new Americans with Disabilities Act (ADA). Now that it will be much easier for your employees to show that they have a covered ADA disability, what does that mean for you in protecting your company if an ADA lawsuit is filed?
Essential job function is key
One of the ADAAA’s stated purposes is to shift the focus from whether an employee’s impairment is a disability to whether you have complied with your ADA obligations. Thus, your main defense will be that despite reasonable accommodations, a disabled employee still couldn’t perform the essential job functions. How do you make that showing?
First, update your job descriptions. Determine ahead of time which job functions are essential — as opposed to marginal. If you have job descriptions, dust them off and review them closely to make sure they accurately set forth the position’s essential functions. Look at what the job actually entails as it is being performed and the importance of each specific task. Don’t rely on generic job descriptions. Your job descriptions need to be crafted individually for each specific job within your organization and reviewed and updated at least once a year. Relying on an old job description that isn’t accurate can get you into hot water.
Second, understand the scope of what could be a covered disability. Suppose an employee is having difficulty performing his job and informs you that it’s because of a medical condition. Unless the condition is minor and temporary — such as the flu or a broken leg that will heal quickly — assume for purposes of the job-accommodation analysis that it will constitute a disability, especially under the dramatically expanded definition of disability set forth in the ADAAA.
Audio Conference: Essential Function: Writing ADA-Compliant Job Descriptions
Third, consult with the employee and identify any barriers that make it difficult to perform the job. In making this assessment, you may need to ask the employee about the nature and extent of his medical impairment and, with his cooperation, identify his abilities and limitations. Sometimes the employee will be able to provide you with enough information so that you won’t need more input from his doctor. Especially when the employee has a mental disability, however, you may need to have the doctor provide you with additional information about the condition and the resulting limitations. Armed with that information, you can then seek to identify the specific job tasks or aspects of the work environment that limit the employee’s ability to perform the job.
Fourth, identify various types of potential accommodations that would enable the employee to do the job. Often, the employee will have his own suggestions. But if you and he can’t come up with any potential accommodations, don’t give up. The EEOC has said that employers have an obligation to seek assistance from outside sources, which may include not only the EEOC but also state or local vocational rehabilitation service agencies and local, state, or national disability organizations. You may want to contact the Job Accommodation Network, which can be reached toll- free at (800) 526-7234.
Fifth, assess the “reasonableness” of each possible accommodation. You’ll want to analyze both the effectiveness and the cost of each accommodation. Bear in mind that under the ADA, you don’t have to provide the accommodation of the employee’s choice or even the “best” accommodation, nor do you need to provide an accommodation that would create an “undue hardship” for your business. All you have to do is provide an accommodation that allows the employee to perform the essential job functions. In other words, your goal is to provide a meaningful employment opportunity that allows the disabled employee to attain the same level of performance or enjoy the same level of benefits and privileges of employment that are available to the average similarly situated employee without a disability.
HR Guide to Employment Law: A practical compliance reference manual covering 14 topics, including the Americans with Disabilities Act
Following these five steps is critical to mounting a successful defense to ADA claims. Being able to show the EEOC, a court, or a jury that you have meaningfully engaged in the interactive reasonable accommodation process is critical to ADA compliance and defeating potential ADA claims.
That’s especially the case because the courts often will look to whether there was a breakdown in the reasonable accommodation process and find that the party who caused the breakdown bears the responsibility. Thus, if an employee fails to help his employer determine specific reasonable accommodations, then the courts often have found that he was at fault and dismissed the case. On the other hand, if you are the one who refused to respond to an employee’s request for reasonable accommodation or failed to engage in a meaningful interactive dialogue, then you will be found at fault and ADA liability will be imposed.
And don’t forget . . .
The final point in protecting your company from potential claims under the new ADA is to remember to document the interactive dialogue as it occurs during the course of the reasonable accommodation process:
- If you have a meeting with a disabled employee to discuss a reasonable accommodation, document the conversation in a memo that you send to the employee.
- If you need additional information or solicit suggestions from the employee, you can do that orally, but again, memorialize your conversation with a written memo or e-mail to the individual.
You may find this to be tedious and time-consuming, but the old adage “an ounce of prevention is worth a pound of cure” applies in full force to ADA claims. Good documentation of the interactive process usually will carry the day.