When it comes to the Americans with Disabilities Act (ADA) and the reasonable accommodations employers must make to comply, it may seem that nothing can be simple — especially considering the amount of litigation generated by the topic. But David K. Fram, director of the National Employment Law Institute's (NELI) ADA & Equal Employment Opportunity Services, said he thinks otherwise.
He says there are five words HR should train supervisors to say that can ensure even the most complex situations start out legally sound: "How can I help you?"
Fram said he's been offering this advice for years, but it persists as a handy tip: "I still think those are the right words — it's a really positive way to deal with a challenge," he said at NELI's 42nd annual Employment Law Update conference in Washington, D.C.
Throughout Fram's session on ADA updates and reasonable accommodation, he urged attendees to train their supervisors to heed the ADA's rules and regulations, all by first posing that simple question to employees who indicate they're having difficulty working because of an impairment. Once they've got that down, there are a few more training items that can help managers prevent disability discrimination claims.
Find simple solutions for simple problems — and document it
Fram brought up a request more and more supervisors are hearing: "Can I bring my emotional support animal to work?" Most supervisors might balk if an employee approached them with such a request — how can a busy office cope with an animal walking around? But he urged attendees to remind their supervisors to ask good questions.
He once counseled a supervisor fretting over the emotional support animal question. "What kind of animal is it?" he remembered asking his client. "A goldfish," the client said.
For Fram, the answer was simple enough: let the emotionally distressed employee set a small goldfish bowl on her desk to calm her as she works. But even this simple fix requires thorough documentation of six things:
what the person said when they came to the supervisor;
what the supervisor said; (Hint: it should be those five magic words.)
what the person requested;
that the supervisor said yes to the request;
that the supervisor did not make any inquiries about medical information; and
that the supervisor followed up with the employee and asked about the progress
But employees often make requests that aren't so simple: "if it's not a quick fix," Fram said, "that's when we get into ADA land."
Engage in the interactive process
Supervisors don't fill the role of a parent or a doctor. The employee generally bears the burden of illuminating supervisors of their condition, especially if the common eye can't detect it. The employer inherits some responsibility once the employee has articulated the problem.
When an employee tells a supervisor that a medical condition is impeding his or her work, a supervisor should know that the interactive process has been launched. "What should you do once the interactive process has been triggered? Interact!" Fram said. Supervisors should invoke the five words and, if the fix is simple, allow it and document, as discussed above.
On the other hand, if an employee's condition is obviously interfering with his or her work, managers have a responsibility to speak up. The supervisor can take the employee aside, point out the performance problems, and ask how they can help. The employee may refuse assistance and, in that case, the supervisor can step back and document that the problem was addressed and assistance was declined.
Give 'preferential treatment'
The law obligates employers to grant reasonable accommodations that would remove a workplace barrier so that people with disabilities can carry out the essential functions of their jobs, so long as it doesn't cause an undue hardship for the workplace. This may require, for example, an employer to exempt an employee from a policy or to provide special equipment.
Supervisors often are wary of providing special treatment, but that's exactly what the ADA requires. "I would train your supervisors that they must give more to people who need a reasonable accommodation," Fram said. This is, even in the language of the courts, "preferential treatment."
Document, document, document
Managers should be trained to document every step of the interactive process, as thorough documentation can serve an employer well in court.
Fram offered the example of leave as an accommodation. If you're defending an ADA claim and arguing that an employee's leave became indefinite, a paper trail will bolster your point. A supervisor can document how much the employee initially asked for, how many extensions were granted and how the workplace coped with their absence.
Similarly, Fram advised conference attendees that supervisors should also carefully document three things when an accommodation involves temporarily relieving an employee of a certain duty. An employee with an injured back, for example, may take a break from lifting heavy items. In that case, managers should document that:
- the supervisor and the employee understand that the duty in question is an essential part of the employee's job;
- per the employee's request, the employee will not perform that duty temporarily; and
- the employer's definition of "temporary."
Fram also recommended that performance reviews during this "temporary" period make note of this arrangement.
Respond to questions from co-workers appropriately
When an employee with a disability receives a reasonable accommodation, co-workers often have questions. What can the supervisor say when one employee inquires about another employee's change in professional circumstances? The U.S. Equal Employment Opportunity Commission suggests that supervisors explain that they acted "for legitimate business reasons and in compliance with the law," Fram said. But most supervisors don't speak with such heavy-handed legal jargon. So what should that say? "Teach supervisors to say "it's private information and I can't tell you." It's a harsh reply, Fram admitted, but it protects employers from liability.