Since 1990, the Americans with Disabilities Act (ADA), a federal anti-discrimination law, has required employers to provide qualified individuals with disabilities reasonable accommodations, according to guidance from the U.S. Equal Employment Opportunity Commission (EEOC).
But when the disability and the type of accommodation required is not obvious, employers may need additional information or documentation to support workers' requests, according to EEOC. A number of disabilities that are not obvious, also referred to as invisible disabilities, are covered by the ADA, David Fram, director of ADA and Equal Employment Opportunity services at the National Employment Law Institute (NELI), told HR Dive in an interview.
A former ADA policy attorney for the EEOC, Fram conducts in-house ADA training and covers other EEO issues for employers at NELI. Amid the COVID-19 pandemic, as many organizations focus on a return-to-work plan to bring remote workers back to the office, Fram said he has been fielding many questions about employee accommodations. And questions regarding invisible disabilities top the list.
"In fact, most of the cases that we've seen, and most of the requests for reasonable accommodations that we've seen, in the employment context, have been by people with non-obvious disabilities," Fram said.
High-risk underlying disabilities and mental health
Invisible disabilities include conditions such as back impairments, chronic fatigue, diabetes, post-traumatic stress disorder and depression, to name a few, Fram said. "There are lots of neurological impairments that are not obvious impairments," he added.
In creating return-to-work strategies, employers have a lot of questions regarding accommodations for employees with high-risk underlying disabilities and mental health impairments, Fram said. "Employees who may have a neurological impairment or an immunodeficiency impairment" are at high risk to contact COVID-19, he said. So, they may need accommodations, he added.
Another category of concern is someone who may have a severe stress or anxiety disorder, Fram explained. "It's not a high-risk condition, but it's a severe stress disorder that is being exacerbated by the fear of getting COVID-19," he said.
The Centers for Disease Control and Prevention has warned about the fear and anxiety the pandemic can create. And, a work environment can have both positive and negative effects on an employees' mental health, William Kassler, chief medical officer of government health and human services at IBM Watson Health, told HR Dive in April.
There are safety modifications employers can incorporate into the workplace to help employees with high-risk underlying conditions and stress or anxiety issues, Fram said.
"It could be social distancing, or using Plexiglass dividers," he said. Better ventilation or "installing ultraviolet lights that experts are saying can help rid the worksite of some contaminants," Fram explained. "In many cases, it could be that the person needs leave because they just can't come to the workplace," he said. "Or, it could be that the person says 'I need work at home as the accommodation.'"
An employer is not obligated under the ADA to invite accommodation requests, Fram said. An individual decides to request accommodations, according to the EEOC. But from a best practices perspective, it's good for employers to be proactive, he explained. For example, if an employee is struggling to complete essential functions, an HR supervisor can start a conversation by asking a legally sound question like, "How can I help you?"
"I've always said it's a really good idea for employers to train their supervisors and managers because the one thing that they don't want is for somebody to say, 'You discouraged me from asking for an accommodation.'"
Using best practices while complying with the ADA
At PwC, a global network of professional services firms, compliance with ADA and the health and safety of employees is top of mind in return-to-work planning, Mike Fenlon, chief people officer, PwC US, told HR Dive in an email. The firm scored 100% on the 2020 Disability Equality Index, an annual benchmarking tool facilitated by the nonprofits Disability:IN and the American Association of People with Disabilities.
"There are many considerations to make as we reimagine the way we work, particularly for individuals with disabilities — both seen and unseen," Fenlon said. "A key piece of our return to work strategy is defining what an 'essential worker' may be — for us that could be a team working on a tax filing that needs to be manually processed." An essential worker at PwC could also be an employee whose productivity relies upon accessing resources that only exist in the office, he said.
"The flipside is understanding and working with individuals who have learned they actually perform better at home in a quiet, more focused environment because of neuro-differences or mental health issues," Fenlon said. When thinking about bringing employees back to the office, the firm is mindful of mental health and understands that needs among employees will vary, he said.
"The key to getting this right is working closely with coaches and managers to help lead inclusively," Fenlon said. "This means leading with more understanding and empathy, working to create spaces of psychological safety among teams, and providing the right accommodations to protect employees."
From a best practice perspective, an employer may want to talk to an individual about whether they have been more effective working from home, Fram said. But employers are not legally obligated to do so, he explained. By law, an individual wouldn't be entitled to work from home unless it's a proven necessity for their disability, he said. The arrangement must enable the individual to complete the essential functions of their job.
"The EEOC says that an employee's preferences are not really what matters," Fram explained. "What matters is — what do I need because of my disability?"
If an individual can't do the job in the workplace because of attention-deficit/hyperactivity disorder (ADHD), for example, and needs to work at home, that would be a possible ADA issue, he said. But, if the case is that the employee thinks they are more effective working from home, "that's probably not an ADA issue," Fram said.
In some cases, even if an employee has been working effectively from home during the pandemic, that's not conclusive evidence that productivity will continue, according to Fram. For example, the employer may have reduced some of the employee's essential functions amid telework, he said.
"That's why, I've been teaching employers, if you're letting somebody work from home, and they're not going to be doing all their essential functions — document that," Fram said. And, document that they will resume essential functions when returning to work as well, he added.
Creating stigma-free environments
PwC's efforts include a focus on inclusion. "Our disability inclusion journey began more than a decade ago as a grassroots effort when parents of children with disabilities encouraged the firm to focus on increasing disability inclusion in the workplace," he said. Since then, the firm has made this practice a "core tenant of our talent strategy" as people with disabilities are the largest diversity group in the U.S., Fenlon said.
In determining return-to-work strategies, what remains a constant is ensuring that "individuals with disabilities feel they belong within their teams," he said. PwC provides resources on "supporting staff with diverse abilities, training modules and podcasts and unconscious bias training," Fenlon said.
"We have to equip our managers so that they can truly act as allies to all their staffers and foster an environment where all abilities can excel," he added.