October marks National Disability Employment Awareness Month. In the 25 years since the passage of the Americans with Disabilities Act (ADA), there has been substantial progress in making the workplace more accessible.
Whether it be physical changes such as the increased use of guard rails or handicapped parking spaces, or increased sensitivity and acceptance of individuals with disabilities, the workplace is a changed landscape. As a result, employers should follow these key steps to remain ADA compliant.
Remember the ADA is Broad in Scope
An employer should remember that the ADA protects individuals with disabilities as well as individuals who are perceived or regarded as having a disability. The ADA defines a disability as a physical or mental impairment that substantially limits one or more major life activities.
The 2008 ADA Amendments Act (ADAAA) significantly expanded employee protections. These changes were in response to a series of Supreme Court decisions that had narrowly interpreted the ADA, resulting in individuals with impairments that were episodic, in remission or temporary in nature, such as cancer, diabetes and epilepsy, being excluded from the law’s coverage.
Implement Policies that Address Disability and Provide Training
It is critical for an employer to develop, implement and enforce policies covering disabilities. These policies should cover not just physical disabilities, but mental ones as well and allow individuals to bring complaints in confidence and without fear of retaliation.
An employer should respond to such complaints with an investigation and interim or disciplinary measures if needed. What’s more, your organization should develop and implement a reasonable accommodation policy outlining the procedure for requesting accommodations and demonstrating that your business will provide reasonable accommodations if doing so would allow an employee to perform the essential functions of his or her job and not cause an undue hardship.
Finally, an employer must provide comprehensive training to both supervisors and employees so that they know how to identify and report instances of discrimination and harassment as well as handle accommodation requests.
Avoid Impermissible Questions During the Hiring Phase
During the hiring process, an employer should be vigilant and avoid impermissible questions, stereotypes and assumptions with respect to interviews and job applications. Impermissible questions are those about the individual’s impairment or medical history unless such questions are relevant to an employee’s ability to perform the job.
The employer also should focus on whether an individual can perform the essential functions of the job with or without accommodation and whether the individual has the correct education, skills and experience to perform the job in question.
Engage in the Interactive Process
To comply with the ADA, an employer must engage in the interactive process and make a good faith effort to respond to accommodation requests and accommodate them unless doing so would create an undue hardship for the organization.
Reasonable accommodations may include:
• Redistributing non-essential job functions;
• Modifying work schedules;
• Providing modifying devices; or
• Allowing an individual to telecommute.
The conversation should be meaningful, interactive and transparent, and the employer should request more information if it will assist in making a more educated decision. An employer should also remember that each request is unique and should be reviewed and considered on an individual fact specific basis focusing on the request, the employee’s medical restrictions, the essential functions of the job and the employer’s business needs.
Your organization should be flexible, creative and open minded and be sure to document each step of the interactive process to show that it made a meaningful effort to consider the request and provide an accommodation.
What’s the biggest challenge you see in complying with the ADA? Leave a comment below to let us know.