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Is your company at risk for an ADAAA violation?

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On August 7, 2019, the Equal Employment Opportunity Commission (EEOC) released a sad tale of disability discrimination. After learning an employee had a hearing impairment, an employer fired the employee without following its own progressive discipline policy. As this was in violation of the Americans with Disabilities Act as amended (ADAAA), the judge finalized the consent decree on July 26, 2019, and the company was ordered to pay the employee $90,000 in back pay and damages, and to provide training.

This incident wasn’t a “one-off” situation; rather, the EEOC continues to focus on discrimination. In its 2018 fiscal year, the EEOC responded to 24,605 ADAAA charges, resolving cases in the amount of $136.50 million.

Returning to work helps the recovery process.

A large component of a successful absence management program involves helping “qualified” employees with disabilities stay at work or return to work, with or without accommodations, as soon as it is medically safe and feasible. Under the ADAAA, a qualified employee is an individual who meets the job requirements and is able to perform the essential functions of the job with or without accommodations.

Rather than it being an onerous burden on employers, the intent of the ADAAA is to enable individuals with a disability, who otherwise have the skills necessary to perform a particular job, to work or return to work. Returning to work is thought to be therapeutic, assisting employees in their recovery process; it also strengthens the individual’s commitment to the organization. By working together to adopt reasonable accommodations—with the employer providing and the employee embracing the accommodation—the two parties are also upholding the social contract between organizations and individuals.

Accommodation is less costly than litigation.

The ADAAA requires employers to discuss accommodations with qualified employees so as to give these individuals equal access to work. Employers must engage in this interactive process in good faith and should document all discussions and accommodation decisions. Further, the ADAAA requires individual assessments of work ability, job duties (essential functions), and potential accommodations.

Many times, the employee is the best source for accommodation ideas—this is where the interactive part of the process comes in—but there is no mandate for the employer to accept those ideas. For example: If an accommodation presented to the employer causes an undue hardship, or if there are specific safety concerns related to the employee, then accommodations may be deemed unreasonable.

However, employers who don’t follow a workplace policy that proactively encourages employees to return to work may incur both direct and indirect costs to the business. These costs can include expenses associated with recruiting and training replacement workers reduced morale and decreased productivity/customer service, and, yes, litigation costs. Statistics from the Job Accommodation Network continue to support the idea that the cost of an accommodation is usually low enough so as not to be a stumbling block for mid- to large-sized employers—and less costly than not making the accommodation.

Specifically, a 2018 survey of 718 employers conducted by the Job Accommodation Network found that 36% of the employers surveyed reported that a one-time expenditure was required for an accommodation, and the median cost for an accommodation was $500. Approximately 59% of the employers reported that the accommodation did not involve any expenditure. Common accommodations that typically do not involve an expenditure include:

  • Changes to the employee’s schedule, such as reduced hours or job sharing
  • Changes in the employee’s work location, such as a workspace closer to the bathroom or working from home
  • Job restructuring

This simplified process can help you stay compliant.

Adopting a simplified process, such as the one outlined below, may help employers apply the law as well as maximize their workforce.

Step 1 Step 2 Step 3 Step 4
Trigger the process:

A need for accommodation is identified.

 

Gather information:

Clear and strong procedures are critical to ensure only the allowable information is requested.

 

Make a decision:

Review all information on a case-by-case basis, document and communicate the decision to all parties.

Execute:

Implement, monitor, and track any agreed-upon accommodations. Adjust as needed.

As the ADAAA approaches its 30th anniversary next year, it continues to be a critical law in the absence management arena. Employers need to be aware of the rules, have a policy in place, and ensure that procedures are followed. If you have questions or concerns about an accommodation, the Job Accommodation Network is an excellent resource. Or, get in touch with us.

 

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