Editor's note: Katie Clarey is new to both the HR Dive team and HR. This piece is the second of her new series, Back to Basics. If you're new to the field (or just need a little refresher), follow along as she speaks with experts and lays out the basics of federal employment law. She can be reached at [email protected].
WASHINGTON — Let's start with a scenario. An ice cream parlor employee, whom we'll call Jeff, has a bad hip. Jeff can whip up the most decadent dark chocolate malts, but at the end of his eight-hour shift, he has trouble wiping down the counters, mopping the floor and sanitizing all the ice cream scoops because his hip aches so badly. He tells his manager this, specifically stating that he has trouble completing his cleanup duties because of his busted hip. Jeff has even come up with a solution. If he could sit on a stool whenever he manned the cash register, he could rest his sore joint and perform better and with less pain later on. With that, Jeff and his manager have entered legal territory governed by the Americans with Disabilities Act (ADA).
So what next steps should the manager take? When does HR get involved?
As I set out to teach myself the ins and outs of the ADA, I reached out to David K. Fram, the director of ADA and EEO services for the National Employment Law Institute. This guy helped shape the ADA: He was working at the U.S. Equal Employment Opportunity Commission when the law was first passed and helped develop the initial regulations. These days he focuses on teaching, holding conferences and in-house programs for employers.
As luck would have it, Fram was running an ADA workshop nearby, just days before I needed to file my column. So I walked past my office last Friday to a conference center around the corner and spent the day with Fram and a roomful of lawyers learning all about this law.
"The ADA prohibits discrimination against employees or applicants who have disabilities," Fram told me on the phone before the conference. "Importantly, it requires reasonable accommodation in the workplace. That's one of the things that makes it different from other laws is that it has a reasonable accommodation component."
So that's the ADA explained in just three sentences. There's a lot more to discover, so let's hop to it.
Situations that trigger the ADA
It doesn't take much for an employee to invoke the ADA. "It starts when an employee goes into the supervisor's office and says something like 'I'm needing something because of a condition,'" Fram said.
While the Family and Medical Leave Act outlines four situations that may trigger its protections, the ADA protects anyone encountering a problem at work due to a disability. In Jeff's case, his hip pain and his consequential trouble with closing time triggered the ADA. For other workers, it may be diabetes, blindness or anxiety.
Employer and employee eligibility
As long as an employer has 15 employees, it's obligated to follow the rules the ADA lays out. For employees, the ADA makes an employee's eligibility contingent upon his or her having a disability. "ADA covers anybody who's an employee. But the ADA does require that the person have a disability," Fram said.
According to Fram and the law itself, a person with a disability is someone who has a physical or mental impairment that substantially limits one or more major life activity. This includes people who have a record of such an impairment and people who are regarded as having such an impairment. (If someone is regarded as having such an impairment, that means he or she was subjected to a discriminatory action because of an actual or perceived impairment.) Major life activities encapsulate a broad range of actions, from walking, talking and hearing to learning, thinking and reading.
Once it's determined that an employee has a disability and can perform the essential functions of a job with a reasonable accommodation, the employer inherits the responsibility to find and supply the accommodation. "A reasonable accommodation is a modification that the person needs in order to do the job or enjoy the benefits and privileges of the job," Fram said. "Most of the employment cases that have come up have involved employees who need a change to a schedule or who can't do the functions or might need to work at home. Or who maybe need reassignment." According to the EEOC, reasonable accommodations can include:
- Making existing facilities used by employees readily accessible to and usable by individuals with disabilities.
- Job restructuring, modifying work schedules or reassignment to a vacant position.
- Acquiring or modifying equipment or devices, adjusting or modifying examinations, training materials or policies, and providing qualified readers or interpreters.
Getting those reasonable accommodations in place may require managers and supervisors to take a few steps. Those steps are referred to as the interactive process. This process will require them to dedicate some extra time and effort toward their employees with disabilities. "Is this preferential treatment?" Fram asked the lawyers gathered at his workshop. "Yes! People come up to me and say that sounds derogatory. You don't have to use that term. I'm just trying to use a term that [will make] a supervisor or manager understand that they have to treat a person better or different so they can do a job."
Even so, not all situations require employers to do all that much to supply an employee with an accommodation. Let's consider Jeff's situation. He could save himself a lot of pain if he could rest his busted hip by sitting whenever he worked the cash register. If he could just do that, he would be able to clean up his station at the end of his shift. Jeff's manager can easily provide a stool for him to sit on at the register. In this particular ice cream parlor, we'll imagine that there's ample space behind the counter for Jeff's stool, the employees, the ice cream and the equipment. In this case, and in the case of every other simple accommodation, Jeff's manager should document a few things, as recommended by Fram:
- What Jeff said when he came to his supervisor.
- What the supervisor said.
- What Jeff requested.
- That the supervisor said yes to the request.
- That the supervisor did not make any inquiries about medical information.
- That the supervisor followed up with Jeff later and made sure the stool was helping him.
Sometimes ADA-related situations don't resolve so tidily, though. The interactive process always begins with an employee expressing that he or she needs something. This expression does not have to be in writing, Fram specified. He also made it clear that employers do not need to "diagnose" employees. If an employee seems to be having a hard time with a certain job function, a manager can simply address his or her performance and ask if the employee needs any help. "If the person says they don't want help, leave them alone and document," Fram said.
Whenever an employee reveals a problem or a need, managers can say five words that Fram swears by: How can I help you?
Once the employee has established his or her need, the manager should act with some haste. "Unreasonable delay will be evidence of discrimination, so you need to be expeditious," Fram said. Jeff, then, should expect to have a stool at the cash register pretty quickly — even as soon as the next day. Fram noted that the courts realize that services like Amazon Prime, with its two-day shipping, exist. It should not take a manager ten days to find a stool, a lamp, a printer or any other easily-acquired thing that could make a employee's job doable.
Fram noted that the interactive process is not a legal requirement. Someone can't sue an employer saying it didn't engage in the interactive process and expect to win. But employers that train managers to follow this process will reduce their chances of facing (or losing) discrimination lawsuits.
Fram also recommended that managers and HR take extreme care when documenting. "When you're documenting, when you're approaching the interactive process, don't approach it in an adversarial way," he said. "You should be writing everything as if you're writing it for the EEOC to investigate it."
Once the interactive process has come to an end and the reasonable accommodation has been supplied, employers need to follow through with one more crucial step: addressing coworkers. Often, co-workers will wonder why a fellow employee got something special. The EEOC has said that the only thing managers can say to the other employees is that they "acted for legitimate business reasons or in compliance with federal law." Since most people don't actually talk like that, employers can train supervisors to say "it's private information and I can't tell you," according to Fram. It might seem harsh, but it will protect a business from liability.
Where employers mess up
One of the worst things managers do is fail to engage in the interactive process properly, Fram said. He cited recent ADA cases in which managers waited to provide employees with reasonable accommodations that would have required them simply to walk to the supply closet and back. Managers need to be trained, Fram said, to take a special interest in employees with disabilities, to spend more time and effort acquiring them reasonable accommodations and documenting how they've helped them.
So now we know which employers and employees the ADA covers and how the interactive process comes together (or falls apart). I'm going to pick up a few ADA-related stories soon, which you can read here on HR Dive or in our daily newsletter. As I start working on that, I'll leave you to contemplate what we learned and think about how your organization can improve.