Sedgwick recently hosted a webinar discussing Americans with Disabilities Act (ADA) and ADA Amendments Act (ADAAA) compliance, in partnership with Human Resource Executive. There was a high level of interest and employers asked many thought-provoking questions – many of which shared common themes, reminiscent of the early days of Family and Medical Leave (FML) adoption and the development of related policies and procedures. Organizations are dealing with overlapping complex employment issues; ADA/ADAAA compliance continues to be among the top concerns for human resource and risk professionals, particularly when considered alongside other disability and absence issues, including FML, or workers’ compensation requirements.
We compiled a list of the most prominent questions we answered in our webinar, as well as many of the frequently asked questions we continue to hear in the marketplace. It’s likely these may be questions you also have asked when considering your own ADA/ADAAA policies and compliance requirements. Read on and please continue the conversation by asking your own questions in the comments below or via our ADA/ADAAA inquiry form.
Q: What are our obligations under ADA/ADAAA?
The law is designed to be very employee friendly. Its goal is to keep people at work. An employer should make every effort possible – unless it truly creates a significant hardship for their business – to meet a disabled employee’s accommodation request and keep them within the work environment. In the past, prevalent thought may have been, “if we can accommodate, great, but if not, it’s no big deal.” Today, this type of thinking goes against the principles of ADA/ADAAA.
What are an employer’s obligations? The employer is entitled to pursue medical substantiation – is the disability certified and an accommodation appropriate? Then what comes next? If given a medically reasonable accommodation request, the employer is required to pursue the interactive process – engage with the employee to clearly understand the accommodation needed, look for potential options and consider parameters, and monitor that the accommodation is being carried out appropriately and consistently.
Q: Can you expand on what constitutes a hardship to the employer?
Based on communication from the Equal Employment Opportunity Commission (EEOC), an employer must prove that implementing an accommodation would put them in financial hardship. For a very large employer, there are not many modifications that would be officially seen as impactful enough to incur financial risk. For a smaller employer, major modifications may be more likely to be considered a hardship. Buying a piece of equipment, for example, is not usually going to be considered something that would put an employer into financial risk. Having to redesign the workplace or something of similar significance could possibly be seen as a hardship, depending on the size of the employer.
Truly, the buzzword is “significant” – very major, negative impact must be proven to the finances of your organization for a proposed accommodation to be recognized as a hardship. Especially for larger employers, we’ve seen that this is very difficult to prove under most circumstances, but each situation must be evaluated for specific determination.
Q: How can we protect ourselves from lawsuits?
The documentation proving consistency within the interactive accommodation process is of prime importance. Through the years, loose management and inconsistent accommodation – whether based on personal bias, informal policies, lack of training or other circumstances – has led to legal action for unfair employment actions. Consider an example where an employee is accommodated with generic restrictions. However, if nobody monitors for consistency and then, perhaps after years of working under these conditions, new management comes in and says, “I won’t accommodate that anymore,” the employer would be in compliance trouble. Under the law, if an accommodation has already been made available, it sets a precedent. We see more and more employers paying out large sums of money because, even if they’ve tried to do the right thing, if it’s not well-defined, well-documented and consistency and appropriate action can’t be proven in court, they will still end up in legal trouble.
More lawsuits have brought the compliance requirements under ADA/ADAAA into focus. Litigation is most easily avoided through clear adoption of the interactive process and complete documentation around the steps of this process, from the initial request through conversations taking place, medical records retrieved for substantiation, vocational rehabilitation options investigated, what accommodations have been proposed and/or why accommodations may not be considered reasonable.
While employers should have consistency across their entire organization when it comes to the evaluation process used, this doesn’t mean that every work location will be able to make the same accommodations based on the specifics of their business unit.
Q: Does Sedgwick’s platform integrate workers’ comp, FML/leaves of absence, disability and ADA/ADAAA systematically when all elements are overlapping?
One of the keys to reducing risk under ADA/ADAAA is to have standard procedures in place that will trigger the need for an interactive process review. The second key is to use an information management platform to support the accommodation process. Whether or not you utilize Sedgwick’s platform, these keys are critical for ADA/ADAAA compliance.
At Sedgwick, workers’ compensation, disability, absence and ADA/ADAAA are completely integrated so employers can see all of the pieces of the puzzle within one platform. Because of our integrated platform, our clients can look to a centralized source for resources and recordkeeping, and compliance becomes a far easier thing to accomplish.
Q: What guidance do you offer regarding prompting conversation with an employee who appears to have a disability but has not approached the employer for an accommodation?
Similar to the FML arena, an employee doesn’t have to ask for ADA accommodation. If you know an employee has been impacted by a disabling condition, for example if they have been away under FML or another leave type, we encourage employers to offer language in written communication or a conversation to be sure the employee explores the ADA process. Employers should approach ADA concerns in the spirit of collaboration and think creatively to find ways to accommodate any disability.
Q: How long should you extend time after FML has been exhausted?
Once an employer knows there is potential for extended disability-related need upon FML exhaustion, they have a responsibility to educate their employee and explore options under ADA/ADAAA. There’s no official limit on timeframe to allow for conditions that could change; opinions vary on reasonable amount of time – and most often, compliance experts discourage setting hard limits and instead encourage evaluating each situation individually. The employer should be focused on determining whether allowing extra time will ultimately allow their employee to come back into the workplace and return to their job, while also considering whether keeping the position open longer is reasonable.
Q: How do you suggest we handle situations where we are not able to accommodate an employee in any position after engaging in the interactive process?
If ADA/ADAAA options are explored and the employee can’t remain in the workplace and perform their essential job functions through accommodation, it becomes an employment decision. We often see employers put employees on extended leave – personal leave or another leave type – for a period of time to make sure the condition is not one that can change in the short term. Yet, there may be situations where reasonable accommodation cannot be made and an employee is terminated as the end result. Interpretation is much tighter under ADAAA than was originally intended under ADA, but ADAAA changes did not create an environment where an employee can never be terminated. Collaborate with counsel in any situation where termination of employment is considered.
Q: How does an employer accommodate a request for intermittent leave for flare-ups? The employee either exhausted their FML entitlement or is not eligible.
Because leave can be a reasonable accommodation, an employee could potentially be eligible beyond their 12 weeks of federal entitlement, and leave as an accommodation could be used on an intermittent basis. It’s important to remember, even under requirements for reasonable accommodation, an employee must still be able to perform essential job functions and productivity levels must be maintained – lowering productivity standards is not a requirement. If someone is constantly away from work and cannot maintain standards, leave as an accommodation is not allowing them to do their job as defined.
The intent of the law is not to change someone’s job duties; for example, moving someone to part-time work/changing their productivity standards is not specifically the intent of ADA/ADAAA rulings but, if available, may be a good solution based on the employer’s circumstances and is not prohibited by ADA/ADAAA.
Q: Does Sedgwick’s ADA/ADAAA platform include vocational or ergonomic experts that assist employers in determining potential job modifications?
Yes, Sedgwick uses job accommodation specialists who all have vocational rehabilitation backgrounds. When we assist clients with ADA and return-to-work solutions, our job accommodation specialists help with certification, facilitating discussions with physicians to confirm the need for an accommodation, setting expectations with employees and requesting reasonable documentation to evaluate whether they can perform their job with an accommodation. These experts can assist with workplace evaluations to help define the essential tasks of a job and determine which possible accommodations can be made.