Back to basics: the shifting landscape of accommodations and leave administration

February 22, 2024

Back to basics: the shifting landscape of accommodations and leave administration
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The population of Americans living with disabilities is sizable and continues to grow as our population and workforce ages. According to the Centers for Disease Control and Prevention (CDC), up to one in four, or 61 million American adults, live with a disability. In the context of the U.S. workforce, 2022 saw the highest ever employment-population for persons with a disability recorded since comparable data was first published in 2008.

Meanwhile, the nation’s paid family and medical leave (PFML) landscape has become increasingly complex and as a result, employers are seeking ways to both enrich and streamline their policies. As our workforce ages and its needs change, employers have a responsibility — and are expected to — support their employees’ holistic health and wellness and cultivate a productive work environment. Through training and interactive dialogue, employers can heighten their employees’ recovery, engagement and inclusion and bolster the statutory leave laws’ foundational objective: to keep employees at work or help them return to work as soon as possible.

The current leave landscape: what you should know

Some U.S. employers are streamlining their leave policies by engaging a third party administrator (TPA) to assist with leave administration, so that employees can report their leaves in a single centralized place.

In response to the failure at the federal level to pass a uniform PFML law, more states are taking on that responsibility. There are efforts to group states into clusters and design their policies to align and match one another, to decrease variability. Most recently, New York, New Jersey and Connecticut rolled out as a group and intentionally share commonalities. This year, Colorado’s state law rolled out. Maryland, Delaware, Minnesota and Maine are slated to follow in 2026. In addition, 6 states have passed legislation that allows insurance carriers to provide paid family leave products as part of their group disability offerings.

Each state’s statutory rollout is consequential to the larger patchwork of state-by-state leave laws across America and are, in many cases, used by other states as a framework to develop the ins-and-outs of their own statutory programs.

Accommodation options: time vs. money

According to the landmark American with Disabilities Act (ADA), the first-of-its-kind federal law enacted in 1990 that protects the rights of disabled workers, employers must provide accommodations to their employees with disabilities unless those accommodations would present an “undue hardship” to the employer. One argument for undue hardship relies on costs.

Costs, however, are rarely deemed a legitimate undue hardship defense. If an employer uses that defense to justify rejecting an accommodation request, the U.S. Equal Employment Opportunity Commission (EEOC) and relevant state agencies would likely analyze the company’s economic standing in totality, and the employer would be obligated to prove the burden is sufficiently met.

In most cases, the menial cost of, say, an assistive device or a particular ergonomic desk setup, would likely come far from qualifying as an undue hardship in the larger scheme of the organization’s operations. Even in cases when an accommodation-related expense item is costly, employers should not use the cost element as a go-to crutch to reject requests.

Employers do have a range of low-to-no-cost accommodation alternatives at their disposal that can effectively keep an employee on the job, such as greater schedule flexibility, which includes additional or extended breaks. Employers often find this option difficult to stomach, as it can be argued that reasonable, reliable and predictable attendance is an essential function of most jobs. But there are circumstances in which job flexibility does make sense, particularly among the salary population, who can perform certain functions remotely or outside the bounds of office hours.

On the cognitive or job aid front, it may, for example, help to increase the font size for an employee who is visually impaired. Or provide additional training in a format that’s conducive to the disabled employee grasping information more effectively. Other low-to-no-cost accommodation examples include altering the lighting, changing computer monitors, or even granting an employee permission to bring an item to work that improves their health condition, such as a desk fan.

The benefit for employees

An interactive process, the dialogue that happens between an employer and employee to discuss the injured or disabled worker’s needs, serves as the backbone of accommodations. If an employer is asking the right questions and listening to truly understand, they will walk away with the insight necessary to understand an employee’s needs and how best to retain them or return them to work.

When an employee can work and be productive, it results in improved morale — not only for themselves, but for their coworkers. It also notably boosts injured workers’ recovery. Studies have repeatedly shown that injured employees heal faster at work versus sitting at home.

Supporting an aging workforce

According to a 2022 Bureau of Labor and Statistics (BLS) report, half of persons with a disability were ages 65+, nearly three times larger than the share of seniors that didn’t have a disability. A higher likelihood of disability among older populations reflects the increased incidence of disability with age. What does this mean for our workforce? Industry leaders predict that a staggering 50% of those in the working population will become disabled for at least 15 months during their careers.

Given the gravity of that proportion, employers must be proactive in considering possible actions to address an aging workforce’s specific needs. Employers can examine their benefits packages and see where opportunities lie in supporting the kinds of physical and mental conditions that commonly correlate with aging.

From a legal lens, it is critical that employees are trained that aging in and of itself is not an impairment or disability, despite the potential for confusing a disability with natural manifestations of aging. Assumptions about older employees needing extra support or being less capable of performing essential job functions can lead to a pervasive culture of unconscious bias, which can translate into discriminatory — and even legal — action.

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Tags: Absence, Accommodation, Disability, Employees, Helping people, Leave, leave of absence, People, Workforce, workforce absence