Carrera workers accommodating FUCKING You are

Saturday, October 14, 2017 by Kurac

In enacting the 2008 amendments to the Americans with Disabilities Act, Congress made it easier for an individual seeking protection to establish that he or she has a disability. With the amendment’s expanded definition of what constitutes a protected disability, the Equal Employment Opportunity Commission estimates that the resulting increase in reasonable accommodations requested by employees and job applicants and required of employers could range from 2 million to 6.1 million.

The American Bar Association-sponsored webinar “Accommodating Workers with Disabilities: Best Practices for Employers and Employees” looked at the issues involved and provides an overview of reasonable accommodations under the ADA to help counsel advocate for employers and employees.

Moderator Tom Harrington, principal with the Employment Law Group in Washington, D.C., guided an expert panel through such topics as who is entitled to reasonable accommodations, types of reasonable accommodations, reasonable vs. unreasonable accommodations, undue hardship, essential versus nonessential job functions, how to identify accommodation requests, the process and common pitfalls to avoid. The panelists included Ellen McLaughlin, a partner in the Chicago office of Seyfarth Shaw LLP; Christopher J. Kuczynski, assistant legal counsel and director of the ADA/GINA Policy Division at the EEOC; and Julia Campins, a founding partner of Campins Benham-Baker LLP in San Francisco.

Campins said the amendments have taken the focus off whether someone is disabled and placed it on job performance and whether they can perform that job with reasonable accommodations. “A large majority of cases are not dealing with disability any more so the best practice I suggest is to move quickly past the first stage,’’ she advised.

McLaughlin said that all employers should have a reasonable accommodation policy as part of their policy handbook. The policy should:

  • Advise employees how to request reasonable accommodation
    • Make the request to Human Resources, not their supervisor
    • Encourage but don’t require written request.
  • Alert employees that
    • Medical documentation may be required
    • They may receive an effective alternative accommodation, not necessarily what they ask for.
  • Alert employees to what constitutes a reasonable accommodation in the leave of absence policy, such as
    • More time is needed than employer would usually provide and/or
    • Leave is needed for a purpose for which employer generally does not provide.

McLaughlin said the policy should be “no more than a page and a half” and it should set some basic expectations for the employee.

Generally it is the employee who initiates a request for accommodation and this can be done in several ways:

  • The employee can ask explicitly
  • The employee can ask but not use what Campins calls the magic word “disability,” but makes it clear there is a medical issue
  • The employee demonstrates need but does not ask
  • The employee has exhausted guaranteed leave and their medical provider indicates additional accommodations are necessary.

“An employer must meet the employee half way. If an employer sees there is a need for accommodation but the employee doesn’t know how to ask for help, the employer should do what it can to help,” Campins explained. “What you want to do is keep a productive worker in the workforce.”

She listed some tips for employees in initiating a request for accommodations. They include:

  • Be clear about your ability to perform essential functions as well as your limitations
  • Be flexible
  • Follow up
  • Be aware of what you need to reveal about your underlying medical condition; confidentiality obligations and other restrictions may vary by state.

The panelists agreed that employers should ensure that requests for accommodation are dealt with by the HR department and not supervisors. “They [supervisors] don’t need to know what’s going on with a medical situation and I think it’s a bad thing when they do know it,’’ McLaughlin said.

She doesn’t advise setting timelines for dealing with accommodations requests, but McLaughlin recommended acting as quickly as possible to gather the needed information from the employee in order to make a decision. “A delay in request can be denial of reasonable accommodation,’’ she warned. Employees must cooperate in the process by supplying requested paperwork and documents in a timely fashion. While you need to be reasonable in giving an employee an opportunity to provide their information, McLaughlin encouraged employers to “document the employee’s lack of cooperation.”

Reasonable accommodations include:

  • Job restructuring, including when essential functions do not have to be eliminated
  • Part-time or modified work schedules
  • Leaves of absence
  • Working from home
  • Acquiring or modifying equipment
  • Changing tests, training materials or policies
  • Reassignment to a vacant position for which the employee is otherwise qualified. 

Dealing with ADA issues is an interactive process that generally involves the employee, the employer [HR department], perhaps the employees’ medical provider, the employer’s medical provider or other outside sources. McLaughlin advised employers to “never say never” at the beginning of the conversation for accommodation.

“All of this focuses on individualized assessment; taking the facts as they are presented and working with the employee to determine how you can keep them at work, absent undue hardship,” McLaughlin said. “It needs to be done promptly, and you certainly never want to have a request for accommodation be used as an excuse to take some sort of adverse employment action like a demotion or firing.”

Kuczynski, the EEOC legal counsel, encouraged employers to document the interactive process step by step. He is a proponent of set reasonable accommodation policies but warned that one size does not fit all when developing form letters and questionnaires that are given to employees.

“I caution employers not to assume that the right questions for one employee with disability are the right questions for every employee with a disability or even every employee with the same disability who asks for reasonable accommodation,’’ Kuczynski explained. “That’s where I see policy sometimes fall short is that the same form letter is given to each person and often that form letter asks for more information than is necessary to understand whether the person has a disability and has limitations for which they need accommodations.”

The program was sponsored by the ABA Commission On Disability Rights, Commission on Law and Aging, Government and Public Sector Lawyers Division, Section of Labor and Employment Law, Section of State and Local Government Law,Solo, Small Firm and General Practice Division, Young Lawyers Division, and the Center for Professional Development.