10 Thoughts on Working through an ADA Accommodation

The Americans with Disabilities Act (ADA) was originally published in 1991, with revisions and updates in the mid-2000’s.  The legislation prohibits discrimination against people with disabilities in the workplace.  This article will focus on disability and accommodation during the application and employment relationship.  How does this impact our organizations?  What should we consider if an applicant or employee requires reasonable accommodation?  The steps below will assist our organizations in working through the complexity of accommodations.

Below are the 10 thoughts on ADA accommodations:

  1. Are you covered by the ADA? All employers with 15 or more employees are covered under the ADA at the federal level.  Review state regulations and legislation, to verify if there are stricter requirements at the state or local level. 
  1. Policies and Procedures in Place: Ensure your organization has handbook language, a policy, process and/or procedures in place to work through disability accommodations. This includes reviewing job descriptions; physical, standing, sitting or lifting requirements.  The more accuracy in the job descriptions, the better we can assess accommodations and determine the reasonableness of the accommodation request.
  1. Is the applicant qualified? The individual needs to satisfy the definitions under the ADA.  Applicants must meet the skill, experience, education and other job-related requirements.  They must be able to perform the essential functions of the position.
  1. The Interactive Process: Employers should engage in the interactive process in which the employee, health care provider and employer share relevant and important information on the position, the disability, accommodations and limitations of the applicant. This should be a good faith communication process between the parties.
  1. Employee Disability Under the ADA:
  • The ADA defines a disability as one of the following: a) a physical or mental impairment that substantially limits a major life activity; b) a record of a physical or mental impairment that substantially limited a major life activity; or c) being regarded as having such an impairment.
  • According to the Equal Employment Opportunity Commission (EEOC), the ADA Amendments Act (ADAAA) includes impairments that would automatically be considered disabilities. They include deafness, blindness, intellectual disability, completely or partially missing limbs, mobility impairments that require the use of a wheelchair, autism, cancer, cerebral palsy, diabetes, epilepsy, HIV or AIDS, multiple sclerosis and muscular dystrophy, major depression, bipolar disorder, post-traumatic stress disorder, obsessive-compulsive disorder, and schizophrenia.
  • The definition of major life activities includes caring for oneself, performing manual tasks, seeing, hearing, eating, sleeping, walking, standing, lifting, bending, speaking, breathing, learning, reading, concentrating, thinking, communicating and working. Major bodily functions include functions of the immune system; normal cell growth; and digestive, bowel, bladder, neurological, brain, respiratory, circulatory, endocrine and reproductive functions.
  • The definition of a disability also includes situations in which an employer takes an action prohibited by the ADA based on an actual or perceived impairment—for example, removing from customer contact a bank teller who has severe facial scars because customers may feel uncomfortable working with this employee or may perceive the employee as having an impairment when, in fact, he or she does not.
  • The ADAAA directs that if a “mitigating measure,” such as medication, medical equipment, devices, prosthetic limbs or low vision devices eliminates or reduces the symptoms or impact of the impairment, that fact cannot be used in determining if a person meets the definition of having a disability. Instead, the determination of disability should focus on whether the individual would be substantially limited in performing a major life activity without the mitigating measure. This rule, however, does not apply to people who wear ordinary eye glasses or contact lenses.
  • The following are not disabilities under the ADA: transvestism, transsexualism, pedophilia, exhibitionism, voyeurism, gender identity disorders not resulting from physical impairments, other sexual behavior disorders, compulsive gambling, kleptomania, pyromania, and psychoactive substance use disorders resulting from current illegal use of drugs.”[i]
  1. Reasonableness of the Accommodation: The accommodation can be a modification in the workplace. The price of reasonable accommodation will vary, case by case.  Determination of the accommodation should be an open process between the three parties and should be consistent throughout the organization with employees and applicants.
  1. Reasonable Accommodation versus Undue Hardship:
  • “The EEOC, when determining if the employee request creates an undue hardship to the employer, looks not only at the cost of the particular accommodation but also at the financial stability of a company. If the company is making significant profits or has a sizable net worth, the employer may not be able to prove that the requested accommodation would have a significant financial impact, therefore creating an undue hardship. For example, it may be an undue hardship for a nonprofit organization with limited funds to provide a special chair that costs $1,000 as an accommodation to an employee. However, the same request by an employee working in a for-profit organization that made sizable profits may not be seen as an undue hardship for that employer.
  • Accommodations that could result in an undue hardship include modifications that are “unduly extensive or disruptive, or those that would fundamentally alter the nature or operation of the job or business,” according to the EEOC. For example, small employers that require their employees to be able to perform a number of different jobs and tasks may not find it feasible or cost-effective to provide job restructuring as a “reasonable accommodation,” whereas in larger organizations, this may be a free or low-cost option.
  • The EEOC does not see impact on employee morale as a reasonable undue hardship defense.”[ii]
  1. Communication is Critical: The organization should notify the employee in writing if the accommodation has been approved or denied.  Details of the anticipated accommodation start date or reason for the denial should be included.  Copies of all material should be included in the employee files.  Make copies of all information.
  1. Review, Modify and Evolve: Just as we manage PFL and FMLA claims, we need to continue to review open accommodation cases, in the event accommodation requirements change, we need to be aware of these changes. Work with the employee and health care provider to ensure the communication channels remain open.
  1. Job Accommodation Network (JAN): “The Job Accommodation Network (JAN) is the leading source of free, expert, and confidential guidance on workplace accommodations and disability employment issues. Working toward practical solutions that benefit both employer and employee, JAN helps people with disabilities enhance their employability, and shows employers how to capitalize on the value and talent that people with disabilities add to the workplace.”[iii] This is a great resource with helpful information.  The forms, templates and accommodation recommendations are useful for all organizations.  Be proactive and strategic in your approach to accommodations.

Job Accommodation Network

Below are the links for upcoming training’s both in person and online webinars:

Upcoming Compliance Key Trainings

Elmira College: SHRM Certification Exam Prep Course- Fall 2018 & Spring 2019

Upcoming Compliance Online Training

Compliance IQ Webinar

– Matthew Burr, HR Consultant

[i] https://www.shrm.org/resourcesandtools/tools-and-samples/how-to-guides/pages/requestreasonableaccommodation.aspx

[ii] https://www.shrm.org/resourcesandtools/tools-and-samples/how-to-guides/pages/requestreasonableaccommodation.aspx

[iii] https://askjan.org/about-us/index.cfm

7 Reasons to Implement Stay Interviews in Your Organization

What is a stay interview?  “A stay interview is a structured discussion a leader conducts with an individual employee to learn specific actions the leader can take strengthen the employee’s engagement and retention with the organization.”[i]  What is the value of the stay interview?  The organization hears directly from the employee in a one-on-one discussion (not related to performance), with any issues, concerns and opportunities leadership improvement.  This provides us as leaders the opportunity to engage, communicate and retain the workforce.  The stay interviews should be conducted by the leader of the organization, with HR’s support.  I have used effectively used stay interviews.

Below are the thoughts on implementing stay interviews:

  1. Start at the Top: The leader at the top of the organization should set the tone for the organization and conduct stay interviews with their direct reports.  The process should cascade down throughout the rest of the organization to front-line supervisors and employees.  Employees at every level should take part in a stay interview, to ensure an effective and successful process.
  1. In Person: Stay interviews should not be conducted over the phone or via a video conferencing system, if possible. Remote workers should have the opportunity to sit one-on-one with their supervisor and have a discussion.
  1. Expectations of the Stay Interview: Ensure the employee understands the reason for the stay interview and how these interviews will focus on area’s that the manager can influence.  Not all of us can change company policy, mission statements and strategic goals.  However, if a trend in these interviews is consistent, we might have more say in strategic objectives.
  1. Schedule Time: “Most stay interviews take 20 minutes or less to conduct, but some will carry on longer. Leaders should consider telling employees to allow 20 minutes for their meeting, but even then, leaders should allow thirty minutes on their calendars.”[ii] Treat the employee as you want to be treated during the stay interview.
  1. Leave Performance Out of It: There is a time and place to discuss performance expectations. Stay interviews should remain focused on engagement, retention feedback, communication and concerns.  Scripted open ended questions are necessary.
  1. No Advanced Questions: This can limit the conversation to a list of memorized demands and responses. Open ended discussion with note taking, listening and probing for additional information will add tremendous value to the stay interview.
  1. Opening Script: The pre-drafted script is a great way to open the meeting. This will provide additional information to the employee on what the process will look like and the direction of the interview.  The messages will be consistent throughout the organization.

The Why of Stay Interviews:

  • “Employees hear directly from their supervisor that they care and want them to stay and grow with the company.
  • Supervisors further accept retention and engagement within their sphere of responsibility.
  • Employees are more likely to accept responsibility for staying.
  • Stay interviews build trust.”[iii]

Stay Interview Draft Template:

To open the stay interview, a manager may use the following (or similar) statements:

  • I would like to talk with you about the reasons you stay with ____, so I understand what I might be able to do to make this a great place to work.
  • I’d like to have an informal talk with you to find out how the job is going, how the job will change, so I can do my best to support you as your manager, particularly with issues within my control.
  • I will be taking notes throughout our discussion and might ask you to repeat yourself if I do not capture everything.
  • Do you have any questions before we get started?

Review Job Description and Changing Expectations

  • These are the current changes to the job description
  • These will be the changes to the position and current expectations/accountabilities
  • Discuss the reporting structure
  • Communication expectations
  • System reporting expectations
  • Do you have any questions or concerns?

Questions

The following are questions you may ask during a stay interview. You should have several open-ended questions on hand. It’s important to listen and gather ideas from the employee about how you and your organization can retain him or her.

  • Tell me specifically, what factors cause you to enjoy your current job and work situation (including people, job, rewards, job content, coworkers, management etc.), and as a result, they contribute to your staying at our firm as long as you have?
  • What gets your excited to come to work here every day?
  • What do you look forward to when you come to work each day?
  • What do you like most or least about working here?
  • What keeps you working here?
  • If you could change something about your job, what would that be?
  • What would make your job more satisfying?
  • How do you like to be recognized?
  • What talents are not being used in your current role?
  • What would you like to learn here?
  • What motivates (or demotivates) you?
  • What can I do to best support you?
  • What can I do more of or less of as your manager?
  • What can we be doing differently as a management team?  Communication, meetings, etc.
  •  If you “managed yourself,” what would you do differently (in relation to managing “you”), that I, as your current manager, don’t currently do?
  • What might tempt you to leave?

Below are the links for upcoming training’s both in person and online webinars:

Upcoming Compliance Key Trainings

Elmira College: SHRM Certification Exam Prep Course- Fall 2018 & Spring 2019

Upcoming Compliance Online Training

Compliance IQ Webinar

– Matthew Burr, HR Consultant

[i] https://www.shrm.org/resourcesandtools/hr-topics/employee-relations/pages/stay-interview-how-to-core-features-and-advantages.aspx

[ii] https://www.shrm.org/resourcesandtools/hr-topics/employee-relations/pages/stay-interview-how-to-core-features-and-advantages.aspx

[iii] https://www.shrm.org/resourcesandtools/hr-topics/employee-relations/pages/stay-interview-how-to-core-features-and-advantages.aspx

6 Final Guidance Updates to the New York State Sexual Harassment Prevention Laws

As we are all aware, in August 2018, the state published drafts of guidance materials concerning the new legislation, including a model sexual harassment prevention policy, a model complaint form, and model training materials. The state accepted public comments on these materials and, in the October 1, 2018 final guidance, made several changes as a result. On October 1, 2018, New York State released final guidance on the state’s new sexual harassment prevention laws. The new legislation requires all employers in New York State to publish policies concerning sexual harassment, adopt a sexual harassment complaint form, and conduct sexual harassment training.

 Below are final guidance updates:

  1. Employers have additional time to ensure all employees receive the required sexual harassment training. Training must now be completed by October 9, 2019, rather than the original January 1, 2019 deadline.
  1. New hires must be trained “as soon as possible.” Previously, the draft guidance specified new hires should be trained within 30 days of their start date.
  1. The model sexual harassment prevention policy was modified in several respects, including:
    1. The definition of harassment was amended to include harassment based on “self-identified or perceived sex” and “gender expression.”
    2. “Sex stereotyping” was added as an example of sexual harassment.
    3. The language concerning investigations was softened, with the policy now noting the investigation process “may vary from case to case.”
  1. The model complaint form was shortened to omit questions concerning whether the employee filed an external complaint or retained an attorney
  1. The training, which may be presented to employees individually or in groups; in person, via phone or online; via webinar or recorded presentation, should include as many of the following elements as possible:
  • Ask questions of employees as part of the program;
  • Accommodate questions asked by employees, with answers provided in a timely manner;
  • Require feedback from employees about the training and the materials presented.
  1. The training must:
  • Be interactive;
  • Include an explanation of sexual harassment consistent with guidance issued by the Department of Labor in consultation with the Division of Human Rights;
  • Include examples of unlawful sexual harassment;
  • Include information concerning the federal and state statutory provisions concerning sexual harassment and remedies available to targets of sexual harassment;
  • Include information concerning employees’ rights of redress and all available forums for adjudicating complaints; and
  • Include information addressing conduct by supervisors and additional responsibilities for supervisors.

The tools and resources that were released on October 1 include:

  • Updated website with resources for employers, employees, state contractors and targets of sexual harassment
  • Updated model sexual harassment prevention policy
  • Updated model sexual harassment complaint form
  • Updated model training (script book and PowerPoint presentation)
  • Updated minimum standards for sexual harassment prevention policies and trainings
  • Updated FAQs
  • Toolkits for employers and employees and a sexual harassment prevention policy poster are also being made available.

Sexual Harassment in the Workplace 

Employer Resource Link

Frequently Asked Questions Link

Below are the links for upcoming training’s both in person and online webinars:

Upcoming Compliance Key Trainings

Elmira College: SHRM Certification Exam Prep Course- Fall 2018 & Spring 2019

Upcoming Compliance Online Training

Compliance IQ Webinar

-Matthew W. Burr