As a small business owner with no formal HR training, maintaining compliance with the variety of HR-related policies is a huge undertaking. They can be tough to keep up with for even the most experienced HR professional.
The Family Medical Leave Act (FMLA) and the Americans with Disabilities Act (ADA) are laws that we often see questions about. See below for insight from industry professionals on the ADA specifically.
First, a bit of background
The ADA (including the ADA Amendments Act of 2008 and the Rehabilitation Act of 1973) and the laws of most states prohibit discrimination against qualified individuals based on: current disability, past disability, perceived (regarded as) disability or associated with disability.
Here’s how the ADA defines the term disability:
- A physical or mental impairment that substantially limits one or more major life activities of the individual.
- A record of such an impairment.
- Being regarded as having such an impairment.
The ADA prohibits private employers, state and local governments, employment agencies, and labor unions from discriminating against qualified individuals on the basis of disability in the following scenarios:
- Job application processes
- Job training
- Other terms, conditions, and privileges of employment
The ADA applies to employers with 15 or more employees.
You can learn more about the basics right here.
Our HR team recently sat it on a presentation at the Philly SHRM Symposium by attorney Michael Cohen of the Duane Morris law firm. He specializes in FMLA and ADA and mentioned some common mistakes he’s seen when dealing with ADA and reasonable accommodation.
Here’s a breakdown of what reasonable accommodation means
According to the EEOC, a qualified employee (or a job applicant) with a disability is someone who with or without reasonable accommodation can perform the essential functions of the job. Reasonable accommodation includes, but is not limited to:
- Making existing facilities that are used by employees readily available and usable by people with disabilities.
- Job restructuring, modification of work schedules, reassignment to a vacant position.
- Obtaining or modifying equipment or devices, adjusting examinations, training materials or policies, and providing readers or interpreters.
Employers are required to make these reasonable accommodations to enable people with disabilities to enjoy equal employment opportunities. The accommodations vary depending on the needs of the individual and not all people require the same accommodation. (Ex. A deaf job applicant could need a sign language interpreter during the interview).
Employers do not have to provide reasonable accommodation if:
- It imposes an undue hardship. The EEOC defines this as an action requiring significant difficulty or expense when considering factors like an employer’s size, financial resources and the structure of the operation.
- It lowers the quality or production standards.
- Generally – Unless an individual with a disability has asked for one. If you believe a medical condition is causing a performance or conduct problem, you may ask the employee how to solve it and assess the need for reasonable accommodation.
Now that you know the background, here are the common mistakes Mr. Cohen discussed:
- Only engaging in reasonable accommodation if the employee formally initiates it. Not to be confused with the bullet above – The key here is to engage the employee in an open dialogue.
- Refusing to consider an accommodation because it’s too hard or not good for morale.
- Focusing on the disability too much and not on essential job functions.
- Failing to consider the job description when focusing on the essential job functions (and using outdated descriptions).
- Dismissing unreasonable requests without exploring other, more reasonable ones.
- Failing to consider other accommodation requests in similar situations.
Of course there are a lot more factors that play into compliance with the ADA so you’ll want to ensure you’re well educated on it.
If you want to avoid mistakes like this, it’s a good idea to consider reaching out to your trusted advisor.
Disclaimer: Please note that this is not all inclusive. Our guidance is designed only to give general information on the issues actually covered. It is not intended to be a comprehensive summary of all laws which may be applicable to your situation, treat exhaustively the subjects covered, provide legal advice, or render a legal opinion. Consult your own legal advisor regarding specific application of the information to your own plan.