Performance Issues and Accommodation
How much do you know about the Americans with Disabilities Act, or ADA?
You’re probably already aware that the ADA prohibits employment discrimination based on disability. You may also know that employers have the responsibility to make “reasonable accommodations.” In this trainer, we’ll talk about the specifics of employers’ ADA requirements, along with the Interactive Process used to determine what accommodations are needed and whether they can reasonably be offered. Today’s guidance is more of an “Eight Minute Trainer,” but the importance of this information can’t be overstated.
The ADA: An Overview
The Americans with Disabilities Act was put into effect in 1990 and amended in 2008. (In addition to the “ADA,” or even “the Act,” you may also see the updated Act referred to as the “ADAAA,” the Americans with Disabilities Act Amendments Act.) Its goal is to ensure that people with disabilities who can perform their jobs will not face discrimination in the workplace. The Act prohibits employment discrimination based on a person’s disability or known association with a person with a disability (for instance, if an employer refuses to hire a caretaker of a disabled person).
ADA protections apply in all employment practices: during the hiring process; training; compensation; advancement; and termination. In addition to prohibiting discrimination, the Act requires employers to provide “reasonable accommodations” to employees who have disabilities, as long as doing so does not impose an undue hardship upon the operation of the business. To determine what accommodation is needed versus what can be reasonably offered, employers to whom the ADA applies must go through the “interactive process.”
Does the ADA’s requirement to accommodate apply to you? ADA regulations apply to employers with 15 or more employees. However, many state laws apply to employers with fewer than 15 employees, or impose requirements that are stricter than the ADA, so be sure to confirm the laws that apply to you with a Solution Center advisor.
In order for an employee or job applicant to be covered by the ADA, they must:
- Have a physical or mental impairment that substantially limits one or more major life activities;
- Have a record of having such impairment; or
- Be regarded as having such an impairment.
Some examples of impairments that are covered are deafness, clinical depression, HIV infection, epilepsy, diabetes, and bipolar disorder.
The employee must also be qualified for their job, and able to perform the essential functions of their job, either with or without an accommodation. These essential job functions, including any physical or environmental requirements, should be documented in a job description that is signed by the employee.
Employee Disabilities: What Can You Ask?
Employers cannot ask an employee about the existence, nature, or extent of a disability, unless the inquiry is job-related and consistent with business necessity. You also may NOT ask a coworker or family member if the employee has a disability. Any question likely to elicit information about a disability is prohibited.
Examples of what NOT to ask include:
✖ “Do you take prescription drugs?”
✖ “Have you had complications with pregnancy before?”
Here’s what you can ask:
✔ “Can you perform the job functions?”
✔ If there is an obvious disability, or if the person discloses disability, “What will you need to perform the job?” or “Will you need an accommodation for [essential job function]?” or simply, “What can we do to help?”
What If You Think an Accommodation is Needed?
Sometimes, an employee will begin having performance issues due to a disability but will not approach you to ask for an accommodation. However, you may find yourself wondering if one is needed.
Let’s consider a specific example: You notice that your employee, Ann, a medical assistant, always needs to stand to your right when you speak to her, and often has to ask patients in the treatment room to repeat what they said. This is beginning to affect her work, as patients are complaining that they told her something and she “ignored” them.
In situations like this, do not jump to any conclusions. The Act prohibits you from asking any employee about the existence, nature, or extent of a disability unless your questions are job-related and necessary to the business. Do not ask Ann, “Do you have a hearing problem?” Instead, say to her, “Ann, some patients have said that you don’t respond or you ignore them when they ask you a question. This is becoming a problem. How can I help you with this?”
If she says, “Oh, thanks, I don’t need anything,” you can proceed to coach on improvement in this area as you would with any other employee, and document the interaction with the employee for your records.
But if she says, “I have hearing loss in my right ear, and it’s getting difficult to hear the patients. I think I might need a hearing aid,” then proceed with the interactive process as explained below.
When Accommodation is Requested: The Interactive Process
Other times, ADA accommodation issues will likely come to your attention more directly. Your employee Beth may come to you and say, “I have a condition that affects my eyes and I need a special type of screen for my computer monitor.” Or employee Craig says, “I have diabetes, so I need an extra break or two so I can check my blood sugar throughout the day, and I might need to grab a snack if it’s low.” Or employee Danielle, who has significant hearing loss, wants to attend a training event with the rest of the team, but asks for a sign language interpreter to be provided.
These types of requests trigger the “interactive process” under the ADA. Note that the process is not “reactive”: you do not have to run out and immediately buy a monitor screen for Beth, let Craig take as many breaks as he wants, or hire an interpreter for Danielle right this minute. In fact, employers are not required to provide the requested accommodation. What is required is that you engage in the interactive process—a cooperative communication between you, the employee, and the employee’s health care provider. This process should be documented to show your efforts to comply with the law.
Your first step is to provide a letter to the employee, along with a copy of their current job description and a form for their doctor to complete. In this letter, you will request that the employee take their job description to their doctor and get an opinion as to what, if any, accommodation is necessary, so the employee is able to perform all essential functions of their job. If the disability is obvious or already certified, the interactive process can sometimes take place directly with the employee.
A few tips:
- It is likely NOT necessary, and therefore NOT LEGAL, to request copies of complete medical records to support the accommodation form.
- If you do not have current, up-to-date job descriptions for each of your employees, CEDR can help you create them.
- Give clear instructions to your employee: tell them what you’re asking them to do with the forms, and give them a reasonable timeframe for returning them. Follow up if you do not hear back within that timeframe.
Next, the employee or their healthcare provider will let you know if an accommodation is required, and provide specific information about the accommodation. Depending on the type of accommodation, the next issue is whether it is reasonable.
Reasonableness must be considered on a case by case basis, with consideration given to availability, costs, effectiveness, and other practical considerations relating to the accommodation(s) in question. For example, if Beth’s doctor says she will be able to perform her job if you install a $1,500 computer screen for her, you need to consider whether that cost is an undue hardship on your business. If the screen is unavailable (out of stock, discontinued, etc.), the interactive process continues with a letter back to the employee’s healthcare provider, asking them to consider an alternative (for instance, another brand). You can also offer a less costly alternative.
Let’s revisit the example of Danielle, who requested a sign language interpreter. If that’s too costly, and the employee refuses to consider any other option, it may be appropriate to offer to provide a written transcript after the event, or to permit the employee to bring along a family member who signs, with only some costs paid by you. According to the EEOC, the employer has the final discretion to choose between effective accommodations, and may select an option that is less expensive or easier to provide.
Once a reasonable accommodation is agreed upon and implemented, the employee is thereafter expected to perform the job just as anyone who did not have the disability would perform it.
What if the Requested Accommodation is Unreasonable?
If the only possible accommodation would impose an “undue hardship” on the business, an employer may deny the accommodation request. Note that an undue hardship is a difficult standard to meet – the accommodation must be significantly difficult or expensive. The determination is made based on the size, resources, and nature of the employer’s business. Normally, mere inconvenience will not meet the standard for undue hardship.
Let’s consider some examples. An assistant requests an accommodation to shift his schedule back by one hour each day. This would cause him to miss the business’ morning meeting. While inconvenient, it’s unlikely the business would succeed in showing this to be an undue burden. A reasonable accommodation may be to allow the schedule change and require the assistant to review notes from the meeting before beginning his workday.
In another scenario, an assistant is the only employee in an office who is certified to operate a piece of equipment. She requests an accommodation that will exclude her from operating that equipment in the future. Without an operator for that equipment, the business’s ability to see patients and produce revenue would be reduced by about 50%. This may constitute an undue burden for that business.
Note that what is an undue hardship for one business may not be for another business. It is vital to engage in and document the process leading up to any accommodation decision, and to make each determination on a case-by-case basis. Contact CEDR for assistance with these considerations.
What if the Doctor Says No Accommodation is Needed?
In some cases, the doctor might say that your employee can perform their job without an accommodation. When this is the result of the interactive process, you need to keep the medical certification in the employee’s file and continue to clearly document the employee’s performance issues. Performance or behavioral problems should then be addressed as they would with any other employee.
Questions? Call CEDR!
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