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

5 Considerations When Giving a Reference

As we all know, when an employee leaves an organization, it isn’t always on a positive note.  Through a resignation or termination, the employment relationship ends, positive or negative, good or bad.  As previous employer’s we are conflicted on what information to provide about the current or former employee during the reference or background checking processes.  Should we tell the new organization the employee was terminated or a poor performer?  Should we tell the new organization that the employee caused conflict and drama or didn’t show up for work on time, missed days, quality issues, etc.?  What if there was a workplace violence issue?  The standard answer for most organizations is; date hired, last position held and last day worked.  What if the new organization questions you, the old employer if the person is eligible for rehire or if you would hire them again?  What do we do then?  In many situations, these are not easy questions to answer.

The five considerations when giving an employment reference:

  1. Applicable state legislation: Many states now have legislation that gives employers “qualified immunity” when we as former employers are providing reference information. “That means you’re protected from civil liability if you’re responding in good faith-in other words, without knowingly providing false or misleading information or acting with malicious intent.”[i]  What does that mean for us in New York State?  “Currently (2005 article), New York employers have a qualified privilege defense available to them when they provide information regarding an employee or former employee’s character…New York has not adopted a reference check immunity law…reference check immunity laws do not protect employers against claims that negative job references were given in retaliation for protected activity under discrimination laws.”[ii]  As of 2005, there were thirty states that had adopted reference check immunity laws, which vary widely throughout the country.  If you have former employees moving to another state, know the state laws prior to providing reference checks or additional information about the employment relationship.

 

  1. Control the Information: The Society of Human Resource Management recommends that we as employer’s limit who can and cannot give references and what information can be provided. It should be the responsibility of the HR professional, manager, general manager, office manager, business owner, etc.  Someone designated with authority that can speak to the employment relationship.  This will ensure consistency in the process throughout the organization.

 

  1. Consistency in the Process: Reference requests should follow the same process for all current or previous employee’s.  “All disclosures should be made only in writing and only upon written request from the prospective employer and with written permission from the employee.”[iii]  Companies are now outsourcing the reference check processes, which ensures consistency.  However, this provides limited information for the future employer.

 

  1. Relevant Facts: Do not give opinions about the employee’s suitability for a prospective job or new position. Even if the employee was an underperformer at your organization, they could be a great fit for the new position.  Use only documented evidence on job performance, when sharing with the prospective employer.  Less said, better defended!

 

  1. Employee Permission: It is recommended that all job candidates complete an application form that includes a release for employers from which they have added as a reference. This form should be consistent across the organization, to ensure equity and avoid discrimination charges.  I recommend obtaining this prior to releasing any information about the current or former employee.

 

As leaders, we need to ensure we are consistent when providing references for all our employee’s; past, current and future workforce.  Updating policies, procedures and processes will provide the foundation on which we can build a consistent process for reference checking and verification.  Documenting work performance and accurate performance reviews will help in providing accurate and relevant work-related information.  Remember that state laws will vary on qualified immunity legislation and these laws like most other’s will continue to evolve through court decisions and the legislative process.  Seek guidance if you are confused or need assistance developing or revising a process.  Be consistent, equitable, stick to the facts and control the information your organization provides during a reference check.

-Matthew W. Burr

[i] https://www.shrm.org/hr-today/news/hr-magazine/0418/Pages/when-giving-references-how-truthful-can-you-be.aspx

[ii] https://nys.shrm.org/sites/nys.shrm.org/files/ReferenceChecking.pdf

[iii] https://www.shrm.org/hr-today/news/hr-magazine/0418/Pages/when-giving-references-how-truthful-can-you-be.aspx

11 Changes to New York State Sexual Harassment Laws

Yes, that does read correctly, 11 upcoming changes.  New York State legislators have passed multiple regulations related to sexual harassment in the workplace; training, policies, reporting, etc.  Many of these new regulations and rules are in the wake of the #MeToo movement and the many issues we have seen with sexual harassment in the workplace in a variety of industries, organizations and professions.  As leader’s we cannot tolerate harassment of any kind.  The new law(s) require employers to provide sexual-harassment training to all workers and much more.

The 11 changes to sexual harassment legislation (for now):

  1. October 9, 2018: As of now, and by October 9, 2018, employers in New York State must implement annual sexual-harassment training. The state is developing a model program, which can be used by employers.  Any training implemented must meet or exceed the minimal state requirements.  More to come on this area of change.

Training Requirements:

  1. “An explanation of sexual harassment and specific examples of inappropriate conduct.
  2. Detailed information concerning federal, state and local laws and the remedies available to victims of harassment.
  3. An explanation of employees’ external rights of redress and the available administrative and judicial forums for bringing complaints.”[i]

Sexual-Harassment Prevention Policy

The state is requiring organizations to adopt a sexual-harassment prevention policy and distribute to employees (yes now you must have a handbook of sorts), the expectations of the new requirements could vary from what your organization is currently using.  The state has strict requirements for organizations policies and procedures.  Be aware of expectations and implement accordingly.  The policy is required to include (for now):

  1. “A statement prohibiting sexual harassment and providing examples of what constitutes sexual harassment.
  2. Information about federal and state sexual-harassment laws and the remedies that are available to victims—and a statement that there may be additional local laws on the matter.
  3. A standard complaint form.
  4. Procedures for a timely and confidential investigation of complaints that ensures due process for all parties.
  5. An explanation of employees’ external rights of redress and the available administrative and judicial forums for bringing complaints.
  6. A statement that sexual harassment is a form of employee misconduct and that sanctions will be enforced against those who engage in sexual harassment and against supervisors who knowingly allow such behavior to continue.
  7. A statement that it is unlawful to retaliate against employees who report sexual harassment or who testify or assist in related proceedings.”[ii]

Senate Passes Comprehensive Strengthening of New York’s Sexual Harassment Laws

The Senate Bill

Guidance on Sexual Harassment for All Employers in New York State

These changes are significant across the state.  As leaders, we need to begin planning for training needs throughout the organization and updating policies and procedures.  The training should have a sign in and sign out sheet to ensure employees did attend and stayed to complete the training.  Recording the training to verify all were in attendance was a suggestion I recently heard at a training, but to also show new employees during the new hire orientation process.  Remember this is an annual training.  However, new hires need training as well.  Policies that are modified need to have signatures and witness signatures to verify receipt and understanding.  We are all learning about these changes together.  We need to be proactive and seek guidance, as these laws continue to change and evolve.  New York City has laws above and beyond state requirements (more to be written on this).  Continue to monitor for new updates coming out of Albany.  There are many legal seminars throughout the state on this topic, which will be helpful to organizations of all sizes.  More to be written on these new requirements in upcoming articles!

 

 

– Matthew Burr, HR Consultant

[i] https://www.shrm.org/resourcesandtools/legal-and-compliance/state-and-local-updates/pages/new-york-sexual-harassment-training.aspx

[ii] https://www.shrm.org/resourcesandtools/legal-and-compliance/state-and-local-updates/pages/new-york-sexual-harassment-training.aspx

5 Changes to the Procedures for Processing Disability Claims at the Department of Labor

On April 1, 2018, the U.S. Department of Labor (DOL) implemented new procedures for processing disability claims.  This change impacts employer-sponsored plans, which deal with disability claims.  The Society of Human Resource Management recommends amending plans as needed, with the significant change in procedure processing.  The final rule was published in the Federal Register in December of 2016 and initial implementation was scheduled for January 1, 2018.  In November 2017, the DOL delayed the rollout of the new procedure until April 1, 2018.

Federal Register: Claims Procedure for Plans Providing Disability Benefits

90 Day Delay Information

The 5 changes for disability claims:

  1. “Requires that the reason for a denied claim be provided as soon as possible and sufficiently in advance of the date that the plan’s decision on appeal is due, to give the claimant a reasonable opportunity to respond.
  2. Ensures that disability claimants receive a clear explanation for why their claim was denied, as well as information on their rights to appeal a denial and to review and respond during the course of an appeal to any new or additional evidence the plan relied on in connection with the claim.
  3. Requires that a claims adjudicator cannot be hired, promoted, terminated or compensated based on the likelihood of denying claims.”[i]
  4. The new procedures can impact disability claims under the employee benefit plan, which is covered by the Employee Retirement Income Security Act (ERISA). In some circumstances, this can impact retirement plans, as well as medical coverage and other perks.  “Nonqualified deferred compensation or supplemental retirement plans…may have different benefit terms or entitlements based on disability.”[ii]
  5. “If employers have fully insured plans, they should monitor their insurance providers to ensure that the new procedures are being followed, Mindy said. For the most part, insurers have started implementing these procedures,” and they have reason to do so, since the courts can hold them liable as plan fiduciaries for a fully insured plan, he noted.  For self-funded plans, typically managed by a third-party administrator (TPA), there’s obviously more for plan sponsors to look at” because the employer bears greater liability for noncompliance.”[iii]

The reporting and disclosure guide for employee benefit plans outlines the required steps plan sponsors and organizations need to take when communicating changes to the summary plan description or summary of material modifications.  The modifications should outline the claims procedures and distribution should take place 120 days after the end of the plan year in which the change is made or as outlined in the reporting disclosure guide.  As discussed in previous articles, we continue to see significant changes in laws and compliance requirements.  Ensure your organization is working with your plan sponsors to communicate the required information.

Reporting and Disclosure Guide for Employee Benefit Plans

 

– Matthew Burr, HR Consultant

 

 

 

[i] https://www.shrm.org/resourcesandtools/hr-topics/benefits/pages/new-disability-claims-procedures-take-effect.aspx

[ii] https://www.shrm.org/resourcesandtools/hr-topics/benefits/pages/new-disability-claims-procedures-take-effect.aspx

[iii] https://www.shrm.org/resourcesandtools/hr-topics/benefits/pages/new-disability-claims-procedures-take-effect.aspx