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

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

2018 W-4 Form, W-4 Requirements Annually, and changes to NYC Legislation

In late February, the IRS released the updated 2018 Form W-4 and an updated tax withholding calculator.  The calculator provides an opportunity for employees to check their 2018 tax withholding after the passage of the Tax Cuts and Jobs Act, prior to filling out a new Form W-4.

2018 Form W-4

IRS Withholding Calculator

Do employee’s need to complete a new Form W-4 annually:

“Not necessarily. A W-4 form remains in effect until an employee submits a new one except when an employee claims to be exempt from income tax withholding.”

Employers should ensure they have new W-4s for:

  1. New employees. Employers should keep copies of the most current W-4s on hand.
  2. Employees who had a change in withholding events during the year.
  3. Employees claiming exemption from withholding. To continue to be exempt from withholding in the next year, employees must give employers a new W-4 claiming exempt status by Feb. 15 of that year. If an employee doesn’t give you a new Form W-4, employers must withhold tax based on the last valid Form W-4 for the employee that doesn’t claim exemption from withholding or, if one doesn’t exist, as if he or she is single with zero withholding allowances.”[i]

 

IRS Publication 15 provides guidelines for employers to remind employees before December 1 of each year to submit a new W-4 form if the withholding allowances changed or will be changing in the next year; due to added dependents, new tax legislation, etc.  As employers, we need to ensure all of our new hire paperwork is up-to-date.  This recent change should be noted as part of your organizations onboarding/new hire process.

 

NYC Evolving Legislative Changes:

NYC Mandates Temporary Schedule Changes 7/18/18

The new law provides employees with additional rights to demand changes to their schedule.  The law permits employees to demand two temporary schedule changes per calendar year for personal events.  The definition of personal events is broad, which leaves room for interpretation.  There are guidelines and certain exemptions to the new rule.  However, it is broad and will cover many organizations.

NYC Mandates “Cooperative Dialogue” 10/15/2018

This law codifies the organizations obligation to engage in a cooperative dialogue with any employee who may be entitled to reasonable accommodation.  “Specifically, you will need to engage in a good faith written or oral “cooperative dialogue” with the employee addressing:

  1. The employee’s accommodation needs.
  2. Potential accommodations that may address the needs, including alternatives to an employee’s requested accommodation.
  3. The difficulties that such potential accommodations may pose for your business.

After a final determination is made at the conclusion of the “cooperative dialogue,” you must provide the employee requesting the accommodation with a final written determination as to whether or not the accommodation is granted.”[v]

The  legislative changes in New York City will not impact employers in the Southern Tier, unless you have employees in the city.  However, as we have seen in the past, changes in NYC make their way to Albany, which result in statewide sweeping legislative changes, which can and do impact organizations in the Southern Tier.  Continue to watch for legal updates at the federal, state and local level.  If you are confused, seek guidance.  Legislative change is a continuous process and it can be complex.  As society evolves, so do our laws and regulations.  Asking questions, attending trainings, working with consultants and attorneys will provide you with a clearer picture of the evolving legislation.

Interested in learning more from me? Check out the options shared here: 

Upcoming Compliance Key Trainings

Elmira College: SHRM Certification Exam Prep Course- Coming in Spring 2019

Upcoming Corning Community College Training’s

[i] https://www.shrm.org/resourcesandtools/tools-and-samples/hr-qa/pages/cms_015244.aspx

[ii] https://www.shrm.org/resourcesandtools/hr-topics/compensation/pages/daylight-saving-time-wage-hour-problems.aspx

[iii] https://www.shrm.org/resourcesandtools/hr-topics/compensation/pages/daylight-saving-time-wage-hour-problems.aspx

[iv] Burr Consulting, LLC, “3 Daylight Savings Time Wage & Hour Considerations”, Burrconsultingllc.com, November 6, 2017

[v] https://www.shrm.org/resourcesandtools/legal-and-compliance/state-and-local-updates/pages/new-york-city-employers-reasonable-accommodations.aspx

-Matthew W. Burr