Beware: 4 ADA triggers your managers may be missing
Most HR pros are well aware of the many triggers that could signal an employee’s need for a reasonable accommodation under the ADA. But managers and supervisors are another story altogether.
Many firms are learning the hard way that not training managers and supervisors properly on how to recognize situations when the ADA could be in play has major and costly consequences.
At at the recent Mid-Sized Retirement & Healthcare Plan Management Conference in San Diego, Buck Consultants’ Ophelia W. Galindo outlined some of the major trigger events that suggest that the ADA — and the interactive process — might come into play.
4 events to watch for
Put managers on alert: When these situations crop up, they should talk to HR and see if the company should start engaging in the interactive process and/or considering additional leave as a reasonable accommodation:
1. An employee needs to take time off, but isn’t eligible for FMLA or company leave. Remember, there isn’t an eligibility period for ADA accommodations. So if an employee has a disability, you may have to grant leave as an ADA accommodation.
2. If an employee exhausts FMLA and/or company medical leave. We’ve seen plenty of cases of employers that wound up in legal trouble for automatic termination policies where employees were fired after exhausting a predetermined amount of leave. After all, one of the major impacts of the Americans with Disabilities Amendments Act (ADAAA) was that fact that automatic termination policies became illegal.
3. If an employee — even one who hasn’t been on leave — presents a “doctor’s note” about his or her needs. Any time an employee offers written documentation about a condition from a health provider, employers should be prepared to explore the ADA accommodation process. After all, almost everything could be a disability under the ADAAA.
4. If an employee explains that his or her absences and/or performance issues were related to an illness. Some examples:
- I’m sorry I’m making so many mistakes, but I just can’t concentrate since my doctor put me on a new medication.
- My doctor told me it would be hard to lift things for a few days after my physical therapy visits.
- I have to go to the bathroom every hour or so because of my illness.
But what’s ‘reasonable’ anyway?
Because reasonable accommodations can vary greatly from case to case, the interactive process is a tremendous challenge for HR pros. During her presentation, Galindo also touched on the following things employers should always keep in mind regarding reasonable accommodations:
- Employees must be able to do the essential functions of their jobs with the accommodation.
- Employers aren’t required to create new jobs for disabled employees as an accommodation.
- Essential job functions tend to change, so employers should review job descriptions frequently.
- Open ended, indefinite leave requests are not reasonable. Remember, a company is entitled to a realistic expectation that an employee will progress toward, and ultimately, return to work to perform his or her job.
- Economic or undue hardship is a very hard argument for large companies to prove. Galindo urged firms to remember that undue hardship isn’t determined by work group, location or department, it’s determined on a companywide level. That means employers must prove that the disabled employee’s reasonable accommodation would present an undue hardship to the entire business.
Info: This story previously appeared on our sister website HR Benefits Alert.
