We recently looked at some issues that arise when the Americans with Disabilities Act (ADA) and leave laws overlap (see ADA Leave Issues: Attendance Bonuses, COBRA, and More). Today, we’ll address some common misconceptions about the law.
In a recent seminar at Saul Ewing LLP in Philadelphia, several attorneys offered insight on these issues during the firm’s ADA Executive Session: Mastering Disability Accommodation Issues. The speakers included Dena B. Calo, Allison L. Feldstein, and Ruth A. Rauls, all partners at the firm.
The following “myths” and their accompanying clarifications have been adapted from the session.
Myth: You have to treat everybody the same.
HR is taught to apply rules consistently but that doesn’t apply to the ADA, Feldstein said. The ADA requires individual assessments. You have to examine each accommodation request for its reasonableness with respect for each employee, each department, and each circumstance, she added.
Myth: The employee has to formally request an accommodation.
There are no magic words that trigger an employer’s accommodation responsibilities, the speakers said. The employee doesn’t even have to know about the ADA or use the word “accommodation.”
Good policies, training, and communication can help familiarize employees with this terminology, but managers still have to be trained to listen for any indication that they might need something because of an impairment.
Myth: The employee gets to choose the accommodation.
The ADA requires employers to provide an effective accommodation, and that doesn’t have to be exactly what the employee requests. They’re entitled to something that is reasonable and effective, the speakers said.
Myth: An employee’s disability must affect their essential functions to warrant an accommodation.
Employers may have to provide an accommodation to an employee with a disability even if the connection between the job and the affected major life activity is tenuous, Feldstein told attendees. For example, an employee’s infertility may not affect her job but you certainly can’t discriminate against her because of it and you may need to provide her with an accommodation. Perhaps she needs to work from home because of treatments, Feldstein suggested.
Myth: You may have to permanently reduce production quotas as an accommodation.
A temporary quota reduction could be a required accommodation. A permanent quota (or hours) reduction, however, might not be reasonable, Feldstein said.
Myth: Telecommuting isn’t a required accommodation.
If it’s reasonable in a particular circumstance, the ADA could require an employer to allow an employee to work from home as an accommodation, the speakers said.
Myth: The ADA doesn’t require reassignment as an accommodation.
The law is clear that reassignment can be a required reasonable accommodation. “It’s something we need to at least think about when no other accommodations work,” said Calo.
If you can’t accommodate someone in a way that allows them to perform the essential functions of their current job, “the question of whether you can transfer this person to a different job comes into play,” Calo continued. “A transfer to an open, available job at or below the level for which they’re qualified can be a reasonable accommodation.” She called it the last alternative to termination.
The reassignment also likely needs to be noncompetitive, Calo said. “It’s tough because you’re going to have push-back from managers,” but that’s what the U.S. Equal Employment Opportunity Commission says the law requires. (The federal appellate courts are split on the issue and the U.S. Supreme Court has on several occasions declined to resolve the split.) This doesn’t apply, however, if the employer has a seniority system in place.
Myth: Applicants aren’t entitled to accommodations.
Applicants are protected by the ADA and entitled to accommodations, the speakers said. While you shouldn’t ask each applicant whether he or she would need an accommodation to perform the job, your application should note how individuals can request an accommodation that enables them to apply for the job.
Myth: You have to rescind discipline if an employee discloses a disability.
If an employee discloses a disability after discipline has been implemented, you don’t need to rescind the discipline (including termination), especially if you have good policies in place, Calo said. If you didn’t have a policy in place and the employee didn’t know the consequences of a certain action, that might be different, she said.
But either way, there’s a good chance that the employee’s disclosure has now triggered an accommodation responsibility for you.
Myth: Courts always refer to written job descriptions.
Job descriptions can be helpful in identifying the essential functions of a job, but they also sometimes tell you nothing, Calo said, adding that she’s not a big fan of written job descriptions “unless you actually keep them up to date.” To give your descriptions authority, tie their assessment to performance reviews and have the employee review it and sign off on it each year, she suggested.
Myth: The interactive process should be conducted on paper.
Calo said she likes the creativity that flows from in-person discussions. Many employers have a formal process in place but “until you’re all in a room together, you don’t get that brainstorming that happens,” she said. The employee and the manager often aren’t talking to each other, and that’s really what the process is about, Calo said. It should be a back-and-forth discussion not about medical information but about the employee’s limitations and what management can offer. “A lot of the time it works. That’s what it’s meant to be.”
That doesn’t mean you shouldn’t memorialize what happens, however. This is especially important if the process starts to break down. If an employee won’t tell you what their limitations are, for example, put it in writing. “If it goes to litigation, you want to [show you did] everything you could do to get that information and didn’t break down the process,” she said.
|Kate McGovern Tornone is an editor at BLR. She has almost 10 years’ experience covering a variety of employment law topics and currently writes for HR.ComplianceExpert.com and HR.BLR.com. Before coming to BLR, she served as editor of Thompson Information Services’ ADA and FLSA publications, co-authored the Guide to the ADA Amendments Act, and published several special reports. She graduated from The Catholic University of America in Washington, D.C., with a B.A. in media studies.|