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Still Unclear on ADA Accommodations?

If so, you're not alone. A recent study finds half of employers struggling to determine when an ADA accommodation imposes an undue hardship on their organization. Experts say employers and HR must work closely with employees – and their supervisors – to provide an accommodation that is amenable to all involved.

Wednesday, December 11, 2013
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Enacted in 2009, The ADA Amendments Act was designed to clarify and broaden the definition of disability, and subsequently increased the number and types of individuals protected under the Americans with Disabilities Act.

Now, four years later, it seems many employers still aren't quite sure of their responsibilities in complying with the ADA and accommodating employees with disabilities.  

Consider the Americans with Disabilities Act (ADA) Accommodation Practices Survey -- conducted by Reed Group in partnership with Spring Consulting Group – which finds half of 270 employers indicating they have "difficulty" or "extreme difficulty" in determining whether an accommodation would impose an undue hardship on the organization.

Katherine Dudley Helms, a Columbia, S.C.-based attorney with Ogletree, Deakins, Nash, Smoak & Stewart, works with many large companies, primarily in the healthcare and manufacturing sectors. She sees "a lot of frontline supervisors shutting down when they're asked to make an accommodation," she says.

"And, these accommodations frequently have to do with scheduling," continues Helms. "In [supervisors'] minds, they're already so overwhelmed with scheduling and getting done what they have to get done, and if you tell them they have to accommodate someone else's schedule, they're going to say they can't do it. And that's not necessarily true."

Indeed, scheduling was cited as the accommodation posing the greatest challenge to the largest number of respondents (41 percent), followed by reassignment to a vacant position (38 percent) and job restructuring (27 percent).

In addition, many employers "focus too much on the cost of an accommodation," as opposed to the impact the proposed accommodation has on business operations, says Ellen McLaughlin, a partner in the Chicago office of Seyfarth Shaw and past national chair of the firm's labor and employment law department.

In most instances, she says, "arguing cost is a loser, as the EEOC looks at the cost of the accommodation compared to the overall financial resources of the organization."

In approaching accommodation requests, employers and HR may be better-served by concentrating more on arriving at accommodations that are equitable for all involved, says Helms.

"The key thing that's really critical," she says, "is to engage in the interactive process. The thing that employers have to remember is that an employee doesn't have the right to march in and say, 'I have a disability and you have to accommodate me in this manner.' "

Helms often advises employers to first contact the employee's physician, seeking verification that the employee has self-identified as having a disability, and asking for suggestions on how to best accommodate the employee's needs.

"Get the doctor's recommendations, and have HR look at the possibilities," she says. "And have HR sit down and talk with the employee. Sometimes [agreeing on an accommodation] is easy. Sometimes it's not. But if you have something that's forced on a supervisor and a department, then you may have other employees upset about it."

It's not just ADA standards that make providing accommodations potentially tricky for organizations, adds Michael Studenka, a Newport Beach, Calif.-based partner with Newmeyer & Dillion.

"The overlap of various laws at issue often confuses the employer. You have ADA standards versus FEHA standards, workers' compensation, FMLA/CFRA leave periods, pregnancy leave, HIPAA and other medical-privacy laws [to contend with]," says Studenka. "These laws often intersect on one employee's injury or impairment, and employers struggle to navigate the overlap of the several laws that are triggered."

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Employers and HR professionals must also take the necessary steps to understand what the worker's position entails, he says, noting that doing so means bringing the employee and the employee's manager into the process.

"Failing to rely sufficiently on information from the supervisor or the disabled employee often creates rigid beliefs regarding potential accommodations. This is not a rigid process, but a running group dialogue, all done in the name of making it work for both the employee and employer," says Studenka.

HR leaders must be careful to avoid overlooking the important role of the employee's manager, adds Studenka.

"Too often, HR representatives fail to adequately include floor supervisors in the dialogue, and therefore fail to really learn how the job is performed and what is possible. Supervisors are closer to the ground and understand the needs of the position.

"So, too, does the employee, who's likely been thinking about the impact of their impairment for some time," he says. "Yet the floor supervisors and disabled employee are often not adequately relied on in the discussions about the position."

Employers must also craft written accommodation policies to rely upon in the decision-making process, and to use them for training purposes as well, Studenka says.

"Employers must ensure that all supervisors are well-trained, not just on how the policy works, but why the policy exists. Collectively, the company needs to understand the importance of making accommodations for disabled employees work."

Studenka suggests the organization designate "key disability representatives" to handle accommodation issues as well.

"This helps ensure a consistent application of the process, as well as an experienced core of individuals handling these types of matters. Key representatives help maintain accountability and oversight from the beginning to the end of the process."

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