In the age of the Americans with Disabilities Act, dealing with employees with disabilities can be tricky. In a BLR audio conference, a noted HR columnist for Inc. magazine recently revealed just how tricky. Here are traps she says to avoid.
Dealing with employees with disabilities presents many traps for unwary employers, says Nancy Cooper, given the complexities of the Americans with Disabilities Act (ADA). In these cases, she says, being forewarned is forearmed.
Cooper, an owner in the Portland office of the law firm Garvey Schubert Barer, recently conducted an audio conference on the subject for BLR. She also writes an HR column for Inc. magazine. Here are some of the “traps” she outlined:
Trap #1. Assuming Disability
Employers may tend to assume that employees have a disability, in the ADA sense, just because the workers label themselves as disabled. That doesn’t mean that they are covered by the Act, says Cooper. The real question is if their condition substantially limits a major life activity.
Likewise, don’t assume that employees are disabled simply because they ask for accommodation or because you have heard rumors. Instead, ask for medical certification.
Trap #2. Failing to Document
Plaintiffs with disabilities who sue employers often claim they were denied reasonable accommodation to perform the essential duties of the job. In such cases, documentation is the employer’s best friend, says Cooper. In particular, create documents that show that you are trying to accommodate. In Cooper’s experience, when employers prevail in lawsuits, it is often because of careful documentation.
Trap #3. Making Temporary Changes Seem Permanent
Many employers want to be compassionate when a person becomes disabled, so they assign essential functions of the person’s job to others. If you want to do that on a temporary basis, document that it’s temporary. Otherwise, there will come a moment when it is no longer reasonable to burden co-workers with the extra duties. But when you then try to reassign the duties to the person with the disability, look out!
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Trap #4. Documenting Only the Disabled Employee
If problems with the disabled person’s performance arise, there is a tendency to start documentation. But if you only document actions involving an employee with a disability, says Cooper, it’s going to smack of discrimination. Document the same issues for all employees.
Trap #5. Thinking You Have to Hire
It’s a mistake to think you have to hire applicants with disabilities. “Let me clear that up,” Cooper says. “You don’t.” The ADA doesn’t guarantee preferential treatment—but equal treatment. It just requires that you consider employees with disabilities on the same plane as everyone else and offer reasonable accommodation to put them on that plane.
Trap #6. No Meaningful Interactive Process
Cooper suggests that employers work together with all their employees, disabled and not, as a team in finding a reasonable accommodation. This can eliminate a lot of the bitterness that frequently results in discrimination claims.
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Trap #7. Assuming Punctuality as an Essential Function
Can punctuality be an essential function? Sure, says Cooper—for example, if you have shiftwork and people have to be relieved on time to keep the line moving. However, there are plenty of jobs in which punctuality won’t make much difference in performance. In such cases, don’t call it essential.
In tomorrow’s Advisor, more on Cooper’s ADA traps, and a famous reference that can keep you out of all manner of HR traps, federal and state.