Communication, Flexibility and Policy Process Key to Meeting ADA Compliance for Small Business Owners
Failing to provide employees who have disabilities reasonable accommodation to perform their jobs can lead small business owners into hot water with federal law. In 2017, UPS was not only charged by the EEOC with failure to accommodate employees with disabilities but also charged with inflexibility regarding their 12-month leave policy. In other words, once the 12 months had passed they fired employees, according to EEOC officials, “without engaging in the interactive process required by law.” This error resulted in a payment of $2 million by UPS to 90 employees. But what does this mean for small business owners?
Disability discrimination can occur when an employer treats an individual with a disability unfavorably or adversely in the workplace. Legally, an employer with over 50 employees must provide reasonable accommodation for someone with a disability, unless the small business owner can prove that making the accommodations would cause significant difficulty or expense.
To maintain compliance with the ADA, it’s important for employers to recognize an employee’s “request for accommodation”, even if the disability may not seem apparent or even if the employee may be in treatment or recovery. Of course, it is the responsibility of the employee to make their “accommodation” needs known to the employer when it directly relates to a medical condition. According to both the EEOC and ADA, an employee may use “plain English,” no formal documentation or form is provided by either federal agency, and the request need never include the use of the term “reasonable accommodation” or even mention the ADA. The EEOC has more about that here: Requesting Reasonable Accommodation.
An employee’s request for accommodation based on a medical condition may sound something like, “I’m having difficulty with my current schedule to complete the treatment I need” or “I need surgery and may need six weeks off for recovery.” Requests for reasonable accommodation do not need to be in writing, and the request does not need to come directly from the employee. It is perfectly legal to have a reasonable accommodation request come from a family member, doctor or other health professional. The EEOC and ADA recommends that employers respond to requests for accommodation quickly. Unnecessary delays can result in a violation of the ADA.
As a small business employer, once you receive the request for reasonable accommodation you should meet with the employee to identify both the employee’s needs and what appropriate accommodation might be according to the request. You can ask relevant questions as well as ask what type of reasonable accommodation can be provided. Reasonable accommodations might include time off for surgery or other medical treatment, a flexible or part-time schedule, reassignment of duties or a reduction in travel.
A defined and effective process for employees who need to request a reasonable accommodation is key and should be a part of your job accommodation guidelines. In order for any process to be valuable to your employees, especially a process for requesting accommodations due to medical conditions, you must provide training to your supervisors and line managers. They should be trained to recognize disability discrimination and how to manage the disability accommodation processes including how to handle requests for reasonable accommodations.
According to the ADA, employers may ask for, or require their employee, to provide medical documentation from the appropriate health professionals, doctors, or rehabilitation specialists to determine whether or not the employee has a disability that is covered by the ADA. The documentation also assists in determining which type of accommodation is best for the employee, co-workers and work environment. Although Title I of the ADA limits an employer’s ability to make disability-related inquiries, they do provide assistance through JAN or the Job Accommodation Network. At the JAN website, you’ll find a comprehensive guide as well a sample Medical Inquiry form for your convenience. You can read more here: Employers' Practical Guide to Reasonable Accommodation Under the Americans with Disabilities Act (ADA).
As shown by the UPS case, mishandling requests for accommodation can be hurtful to your organization. But with the appropriate policy, proper management training, preparation, documentation and open communication you can mitigate risks while keeping your highly-engaged employees covered.
FMLA issues can be some of the trickiest and rule-ridden engagements that employers can have with employees. Allow the HR and legal team at the Lynch Law Firm to support you by contacting us immediately.