What is an ADA Accommodation and How to Deal With One
By VICKY BROWN
ADA
The American’s with Disabilities Act. I’m sure you’ve heard of it. As a matter of fact, if you’ve taken the required Anti Harassment Anti Discrimination training, you know that discrimination against the disabled is legally prohibited.
But the thing is – the ADA covers more than just making you install ramps in your workplace. It covers all types of discrimination – it has protections for hiring, ongoing employment (things like selection for promotion), termination protections etc.
There’s one other area you may not consider under ADA, but it surely could be – dealing with performance issues.
Now, just to get into the weeds a bit here – in order to claim discrimination, the employee generally has to prove that the employer knew, or had reason to know, of the disability. Well, it’s that ‘reason to know’ part that hangs everybody up.
If an employee comes in one day and says – wow, I was in a car accident this weekend. Does that mean you might have ‘reason to know’ that a possible disability had happened? OK, maybe not (actually, only your labor counsel could tell you for sure). But if an employee comes in and tells you they have a back condition – well, that leaves little room for wiggle. It puts you squarely in the ‘should have known’ category.
So, how does this impact dealing with performance? Well, if the performance issue can be traced back to a disability, then you as an employer, are obligated to enter into what’s called, an interactive discussion.
OK, stop rolling your eyes. It all just means that before you write David up for being late all the time, you preface the discussion first. Here’s the formula we use: state the expectations of the job, tell the employee where they’re not meeting the expectations. Then – and this is the important part – ask them if there is any reason they know of that would impact their ability to perform the job up to expectations.
Then – listen.
You’re listening for anything that might point (directly or indirectly) to a physical or mental impairment. Now remember (and this is critically important), you ARE NOT going to do any type of evaluation of what the physical or mental issue is or isn’t; how it might be impacting their performance, or not; or anything remotely like that. You’re simply listening for anything the employee says that could point to any type of disability.
Now, what if David says something like – yeah I know I’m late a lot, but my pain meds knock me right out. They make it really difficult to get up in the morning sometime.
Ding ding…consider yourself squarely in the “oh, this might be an accommodation issue” circle.
Now again, you don’t have to (and you shouldn’t try to) figure that out right then and there, on the fly. Nope, if he says that, then you say OK, thank you for that information. If you feel that is impacting your ability to get to work on time, please provide documentation from your physician. Once we get that information, we can continue our discussion – and end the meeting. Yep, end it right then and there.
“… Don’t start creating your own action plan, just do what your attorney tells you to do – because again, these things can move very quickly, and end up in a place that is not advantageous for you or the company.“
You see, you can’t move forward with the disciplining process because you don’t know if there are extenuating circumstances. So you have to end things there, for now.
Then you give them the job description that outlines the essential functions of the position, so the doctor can be specific around where an accommodation might be needed.
What’s that? You’re shaking your head and saying, what job description? And what in the world are essential functions?
Well my friends, that circles back to the episodes we’ve done reminding everyone of the importance of having job descriptions, good, clear, fully realized job descriptions. In fact, this is one of two stand-out times when you’ll really want to have a good job description on hand. The other is when or if you’re dealing with a workers comp issue.
So, check out this episode for details on how to put a good job description together.
For now – back to David.
So, you’ve given him the job description with essential functions for his doctor and a cover note – something like:
Please find the job description for David Smith attached. Please review the job description and essential functions and assess whether the patient can perform all job functions. And if not, which functions cannot be performed, and why not.
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Now again, here I have to state what I end up saying in so many episodes…mostly because it’s true….
I am not an attorney, not even a little bit. So once you know you might be going down the accommodation path, it’s critical to call your attorney, right away. Don’t sit on it, these things can move very quickly, and you’ll welcome the professional legal advice. And once you get it – follow it. Don’t start creating your own action plan, just do what your attorney tells you to do – because again, these things can move very quickly, and end up in a place that is not advantageous for you or the company.
But, just to give you an overview of what will PROBALY come next, you get the doctor’s documentation back, you enter into a discussion (called an interactive discussion) with the employee to brainstorm solutions, and potential accommodations (things like a schedule change for 4 weeks etc.). Then you’ll monitor the progress, and take appropriate next steps from there.
Or maybe, in conjunction with counsel, you determine that the proposed accommodation would cause an undue hardship on the company (and again, be hand in hand with your attorney, because these are VERY deep waters, and in fact they’ve changed very recently). If that’s the decision, then maybe you don’t do an accommodation, and move forward with the performance write up.
Either way, be sure you document the process you went through – because in 18 months, when you get the letter from David’s attorney, and the manager who oversaw the write up is no longer with the company, you’ll need something to tell you what happened when, and how outstandingly lawful everything you did was.
So, the takeaway here is – keep your antenna up. And if you hear any statements that could possibly lead to disclosing any type of disability – well, step carefully. Because believe me – it’s not business as usual.