In theory, “undue hardship” is a tool employers can use to refuse accommodations, says Attorney Lawrence P. Postol; however, employers shouldn’t count on ever being able to use it in the real world.
Here’s the way these undue hardship situations work out. The employee requests a $1,000 desk as an accommodation. The cost of the desk will be compared to the organization’s total net worth, says Postol, and nothing in the way of an accommodation is going to look too expensive when compared to total net worth.
Postol, who is a partner in the Washington, D.C. office of Seyfarth Shaw, LLP, offered his Americans with Disabilities Act (ADA) tips at SHRM’s Employment Law and Legislative Conference, held recently in Washington, D.C.
Devil Is in the Details
Here’s what Postol suggests to help blunt or prevent ADA accommodation problems:
1. Train managers to recognize danger situations. If a medical issue, including “mental” problem, is raised, it is a red flag. Call HR.
2. Involve HR. Whenever one of these issues appears, bring in HR to ensure compliance. You can’t leave it up to individual managers. They don’t want to understand, says Postol, because it goes against productivity.
3. It’s not easy. Recognize that there are many medical issues and many tough judgment calls in dealing with accommodations.
4. You have to be patient. Convince management to not dismiss requests out of hand and to be patient. In some cases, patience pays off, Postol says. When you tell employees you need something in writing, they will overstate their inability to do the job, allowing the employer to say that there is no accommodation for a disability of that severity.
5. Keep it simple. An employee said he needed a curved keyboard because of carpal tunnel syndrome. The employer was suggesting all sorts of reasons why it shouldn’t have to do that. No, buy the $99.00 keyboard, Postol says.
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Reasonable accommodations are now for virtually everyone, Postol says. Here’s what you may be required to do:
1. Alter facilities. Make existing facilities used by employees readily accessible to and usable by individuals with disabilities, with ramps, elevator access, special desks, chairs, etc.
2. Restructure jobs. Yes, you must transfer nonessential duties to others. The key questions are what are the essential duties, and is there someone to whom the nonessential duties can be transferred.
3. Modify schedules. You may have to agree to part-time or modified work schedules, including unpaid leave, which can include telecommuting if face-to-face interaction is not an essential duty. However, indefinite leave is not required.
4. Reassignment to a vacant position. Courts are split on whether a more qualified person or a minimally qualified disabled worker gets the job.
5. Modify equipment. You may have to acquire or modify equipment or devices.
6. Make appropriate adjustments. You may have to modify or otherwise adjust examinations, training materials, or policies.
7. Interpreters. You may have to provide qualified readers or interpreters.
8. Other accommodations. You may be required to offer other similar accommodations for individuals with disabilities.
ADA accommodation always is a challenge, and it’s hard to know what your managers and supervisors are doing in the field. Are all of your managers and supervisors acting according to your ADA policies? And how about all your other policies? How can you tell what’s really going on in your organization? There’s only one way to find out—regular audits.
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