According to the EEOC statistics, charges of discrimination alleging violations of the ADA have been on a steady rise in the past five years: in FY 2008, the EEOC received approximately 19,000 charges alleging violations of the ADA; in FY 2013 (the last year statistics are available), that number has increased to nearly 26,000 charges. See: Charge Statistics. The EEOC has made ADA compliance a priority, so we expect to see charges continue to rise in the next few years.
#1 Designate an “ADA Officer/ Coordinator”
Select and fully train a member of your HR and/or Benefits team to handle all ADA accommodations request. Of course, this designated person can have other job responsibilities as well; for instance, your ADA Coordinator may also be responsible for FMLA certifications and tracking. Importantly, this professional should understand the differences between and nuances of the ADA, the FMLA and any other leave program offered by the employer.
All requests for accommodation due to any medical condition should be directed to your designated officer/ coordinator for consideration and action. An ADA officer/ coordinator will centralize the employer’s response and ensure consistent treatment and application of the ADA. Most importantly, this designation limits direct supervisors’ knowledge of their supervisees’ medical conditions, in turn limiting an employer’s exposure for discrimination and/or retaliation claims.
#2 Use ADA Accommodations Request Forms, Position Descriptions and Checklists
A written accommodations request form is the single best tool for evaluating an employee’s ADA accommodations request. The form requires employees to briefly explain their disability and accommodation request in their own words. Additionally the form requires the employee’s treating physician to certify the employee’s medical condition; answer questions to determine whether the medical condition qualifies as a “disability;” review the position description for the job; identify the functions of the job the employee cannot perform without an accommodation; opine as to all reasonable accommodations allowing the employee to perform the functions of the job; state the limits to the accommodation(s); and identify alternative accommodations.
Once completed by the employee and treating physician, the form is submitted to the ADA Officer/ Coordinator (note– failure to complete the form may lead to denial of the accommodation request and proving the employee failed to engage in the interactive process). The form is then used to assist the ADA Officer/ Coordinator with the accommodations analysis (e.g., whether the employee meets the definition of “disabled” under the ADA and ADAAA; whether the accommodations request is reasonable; whether there are other available accommodations; whether the employee is a direct threat to himself or others) and is the best evidence of the employer’s good faith participation in the interactive process. In addition, the use of checklist(s) is further evidence of all steps taken by the employer to accommodate employees. The ADA Officer/ Coordinator must be mindful to keep accurate and complete records of any and all efforts taken to provide accommodations (in whatever form) to employees.
If you are currently not using an ADA Accommodation Request Form, job descriptions and/or checklists as tools to evaluate accommodations requests, please feel free to contact us to obtain our most current version of the forms and checklists—we are happy to share and work with you to develop your system!
#3 Update Handbook and Written Policies
Companies with 15 or more employees should add an ADA policy to their handbook; an ADA policy is as essential as at-will, EEO and an anti-harassment policies.
The ADA requires employers with 15 or more employees engage in the interactive process and provide reasonable accommodations to disabled employees. Likewise, the ADA prohibits discrimination and harassment on the basis of an employee’s actual disability, being regarded as having a disability, or having a record of disability. There is no downside in including a policy in the handbook addressing and affirming the company’s compliance with the ADA and directing employees to submit all requests for accommodation to a designated ADA Officer/ Coordinator. Indeed, such a policy will prove to be valuable in responding to an ADA claim.
In addition to adding an ADA policies, you should also review your handbook to ensure all policies comply with the ADA. The EEOC is targeting companies with “no fault attendance policies” (See my recent blog article). Therefore, if you have such a policy, you must edit it to allow exceptions in the case of disabled employees.