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ADA Accommodation: 10 Avoidable Mistakes
When an employee requests an ADA accommodation, be sure you are familiar with the governing laws and do not respond to them in any of these ways...
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If you had an employee request an accommodation for their disability, would you know how to respond?
While ignorance to requirements of the Americans with Disabilities Act (ADA) has put some employers in hot water, not understanding the complete definition of "disability" (broadened by the ADA Amendments Act of 2008) has been problematic for others.
With this in mind, we have consolidated the top 10 employer mistakes of how not to respond to an employee's ADA accommodation request to help you avoid legal problems.
Top 10 examples of how not to respond to an ADA accommodation request
1. Use “Undue Hardship” Too Liberally
Do not write off an accommodation as an “undue hardship” because it costs too much. While cost is definitely something to consider, the price must be fairly extreme to be accepted in court as an undue hardship.
2. Reject a Disability for Being Unreasonable
If an employees’ request seems unreasonable or impractical, you still need to engage in a dialogue to determine if a solution can be reached. It’s possible you’ll still find the request to be unfeasible, but you need to follow the full process to reach that decision. As always, be sure to document everything!
3. Ignore an Accommodation Request Due to Lack of Employee Input
If an employee tells you that he or she needs an accommodation, it is your responsibility to as the employer to investigate potential accommodations. The employee might provide suggestions of how an accommodation can be made, but fully relying on the employee’s input and then neglecting to make a reasonable accommodation because the employee didn’t provide a feasible solution is not acceptable.
4. Fail to Document a Denied Accommodation Request
When you are unable to make an accommodation for an employee, keep clear records of the process followed and the reason for denial. Failing to do this will weaken your defense in the event of litigation.
5. End Accommodation Dialogue Early
When you cannot find a reasonable accommodation for your employee to perform an essential job function, do not end the conversation prematurely by saying there are no other options. Consider accommodations such as working part-time, offering remote work, or reassigning the employee to a different position.
6. Temporarily Eliminate Essential Functions
While it may seem like a feasible solution, eliminating an essential job function from a position will only make it harder in the future to argue that it is necessary for anyone to perform that job function. Other employees currently in this position may also argue that it should not be essential for them, either. Some may even claim discrimination if you are making one age group, gender, race, and so on perform the job function, but not others.
If you feel strongly about temporarily eliminating an essential function of a job, be sure to emphasize that suspending or relaxing the essential function is temporary. Be sure to document the specific reasons for this action to avoid discrimination claims from other employees.
7. Assume a Job Function is “Essential”
Speaking of essential job functions, if a manager tells you that a specific job function is essential, be proactive and investigate whether it truly is or not. Otherwise, your definition of “essential” may be contested in court. (Need help with identifying essential job functions? Contact your certified Stratus HR expert!)
8. Disclose Someone’s Disability to Others
Few people are on a need-to-know basis for an employee’s disability. Even managers should only know the nature of the accommodation being provided rather than details about the disability. If, however, the disability affects how the manager needs to interact with the employee, such as a hearing impairment, then more information can be shared.
9. Ignore Other Laws Applicable to a Disability
A disability under the ADA may also qualify as a serious health condition under the Family Medical Leave Act (FMLA), which would trigger FMLA laws and provisions. Be sure to contact your certified Stratus HR expert to ensure you are considering all applicable laws for the situation.
10. Decide on an Accommodation Based on Performance
Regardless of performance, all workers should be treated the same when accommodations are requested. After all, it may be possible that an underachieving employee simply needs an accommodation to be a high performer.
Now, more than ever, it is important that you keep job descriptions detailed and accurate, that you have an accommodation policy, and that your supervisors are trained on how to handle accommodation requests.
With the burden placed on employers to provide reasonable accommodations when possible, and to show care when handling disability-related issues in the workplace, it is critical to be familiar with the ADA to avoid costly lawsuits and penalties.
For more information, please contact your certified HR expert. Not a current Stratus HR client? Book a consultation and our team will contact you shortly.