After the ADA Amendments: Taking a Best Practice Approach to Accommodation
By DONALD GONZALES, a commissioner with the Certification of Disability Management Specialists Commission (CDMSC) and also an absence, health and productivity consultant at Zurich North America
The Americans with Disabilities Act (ADA) Amendments
of 2008 have been in force for nearly a year, but confusion lingers as to what the changes mean and how employers are affected by the law. Employers today need not only an understanding of the amendments but also a systematic approach that utilizes best practices in disability management to comply with the law and promote a culture of accommodation.
An extensive discussion of ADA amendments is beyond the scope of this article. What is important to know, though, is that the amendments retain the ADA's basic definition of disability: an impairment that limits one or more major life activities, including work.
Moreover, the amendments return to the spirit of the original ADA with wider coverage of who is protected by the law and, in essence, nullifying the impact of previous court decisions that had narrowed ADA protection considerably.
"The ADA amendments apply to a broader spectrum of people with disabilities, focusing more on accommodation than on whether the individual qualifies under ADA," said Adrienne Malka, CPDM, ARM, manager of employee disability management services at UCLA. "At UCLA, we have a policy and a practice of reasonable accommodation, which assists individuals with a disability in identifying accommodations that enable them to perform the essential functions of a job. As soon as we know a person has a functional limitation, we engage the employee in an interactive process to provide steps that allow them to stay at work or return to work following a disabling condition."
A culture of accommodation is a commendable workplace goal. But what does that mean in practical terms? A best practice is to take a step-by-step approach that focuses on procedure: the steps to be taken as soon as an employee provides notification that he has a disability.
Employers need to spell out in detail the protocol for how all parties, from the front-line supervisor to human resources personnel, respond when an occupational or nonoccupational disability is reported.
UPDATING JOB DESCRIPTIONS
The first step is for the employer to assess its processes and documentation. Are job descriptions up to date or are they old, confusing and lacking current essential functions? Job descriptions should include vital essential function information and physical and cognitive demands, and take into account any special skills/expertise, licenses and certifications.
With an outdated job description, it becomes difficult to evaluate whether someone can perform the essential duties with or without accommodations, as stipulated by the law. A determination of the essential functions of the job is an important component of the defenses available to employers.
USING AN INTERACTIVE PROCESS
The employee must be involved in the process, not only to comply legally, but because they often have good input about their abilities and what it takes to perform their job. Some employers may be unwilling to take an in-depth look at accommodation for fear of the cost or the concern that other employees will want the same type of treatment.
(Industry experience shows that most accommodations cost nothing, and when an expense is involved, the cost is minimal.)
Nevertheless, the employee's input is critical and often helpful.
Exploring accommodations requires a team approach, relying on experts who might include a certified disability manager specialist, nurse case manager, ergonomist or others. Not only does this tap into valuable disability management expertise, it also shows a willingness and good faith effort to accommodate.
Should the case be litigated, one can expect that questions will be asked about the resources an employer utilized. Employers want to show that they engaged in an intelligent and systematic process to identify accommodations with the help of specialists.
"When an applicant or employee requests accommodation, it's important to remember that 'talk is cheap.' The snowball effect usually starts when supervisors or managers don't engage in a timely and meaningful dialogue," advised Deke Lightholder, a certified disability management specialist with a large California utility. "When an accommodation is requested, a good ice-breaker phrase is, 'How can I help you?' Since most requests are relatively easy, inexpensive and short-term, effective solutions can be very simple."
Not engaging in the discussion around accommodations, however, can be very expensive for employers, Lightholder added.
"Failing to enter into an interactive discussion, even when an accommodation request seems unreasonable, can quickly become a costly legal liability. It's always best to train supervisors to have an ongoing active dialogue with applicants and employees, consider requests, provide accommodations and document--in part to take credit for all that you do."
EXPLORING OTHER JOB PLACEMENT
When reasonable accommodations can be identified, they should be implemented. Follow-up should occur to make certain the accommodation is provided and to see if the employee has problems or concerns.
If no feasible accommodations can be found, the next step is to seek alternative job placement within the company. The employer has an affirmative duty to make known to the employee other suitable job opportunities with the employer and to determine whether the employee is interested in, and qualified for, those positions if the employer can do so without undue hardship.
Placing an employee in another job is not always easy. For example in a construction company, a disabled carpenter may not be capable of the heavy work that is essential to his job, but would like to pursue another vacant position at his company with similar with job duties. Again, utilizing updated job descriptions and interacting with the employee can help avoid inappropriate placement and possible injury to the employee and/or others.
MANAGEMENT TRAINING IS A MUST
Accommodation works best when all parties understand the legal requirements and the rationale. Front-line supervisors and managers, especially, need to grasp the importance of accommodations in order to hire a qualified person who has a disability or to allow an employee with a disability to resume working.
Management training should not only cover requirements of the ADA amendments, but also the company's own policies and procedures. Protocols need to be reviewed, such as whom to contact when an employee reports that she has a disability. Supervisors and managers should be told not to attempt to do this on their own; there are procedures in place and others available to help.
The rules have changed with the passage of the ADA amendments. Rather than taking the stance of trying to disqualify employees from ADA protection, employers are facing a new era of accommodation. To be compliant with the law, employers need to have the right steps and resources in place.
November 1, 2009
Copyright 2009© LRP Publications