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The bottom line on the new ADAAA regs

Oklahoma Employment Law Letter - May 2011

By Sam Fulkerson

Because the definition of “disability” is so broad under the ADA Amendments Act (ADAAA) and its new regulations, the reasonable accommodation process will become “the be all and end all” in the workplace (and litigation most often will be about whether the employer failed to accommodate a known disabling condition). That means you must shift your focus — beginning now — toward the interactive process of providing a reasonable accommodation and away from determining whether an impairment is a disability requiring accommodation. If an employee seeks a workplace change based on a medical condition, or if you have reason to know of such a condition and its detrimental impact on the employee’s ability to perform, you need to participate in the accommodation process in good faith.

 

Practical steps to take

Review, revise your disability and accommodation policies. Your best defense is to review your reasonable accommodation policies and procedures to ensure that they emphasize the accommodation process. Your policy should make clear to employees that if they have some medical condition that actually interferes with their ability to perform their jobs, the company stands ready to discuss possible accommodations.

Your policy also should state briefly that a “reasonable” accommodation is an “effective” accommodation — i.e., one that enables the employee to perform up to the same expectations imposed on all employees in the same position. In addition, you should clarify that “unreasonable” accommodations include measures that are cost-prohibitive, require significant job modification or the creation of a new job, require hiring additional employees to assist an employee in performing essential tasks, or adversely impact coworkers — for example, by requiring their reassignment or termination or by shifting significant workloads to them.

You must also make it clear that the employee is not entitled to the accommodation of her choice. The law says the employer gets to choose the accommodation that’s both effective and least burdensome to implement. It’s better to give employees an idea of what a “reasonable accommodation” actually is before they come asking for one.

Review, revise your testing procedures. Physical ability tests may adversely impact disabled individuals; therefore, they require accommodation upon request. Likewise, aptitude tests should be reevaluated in light of the ADAAA, no matter what skills they purport to measure. Some employment tests are derived from personality tests, in which case they may violate the Americans with Disabilities Act’s (ADA) medical inquiry and examination proscriptions.

Review, revise your job descriptions and qualification standards. Update job descriptions to ensure that all essential functions of your jobs are accurately stated — this is imperative because of the new focus on accommodation. Remember, you only have a duty to accommodate an employee who can accomplish his essential job functions with the help of a reasonable accommodation. If you haven’t determined and documented the essential functions before the accommodation process begins, you’ll be in a bad position, possibly even facing a claim that you manipulated the essential functions after an accommodation request in order to defeat the request. That allegation will get the employee a date with a jury.

Train your managers. Now is the time to train your managers to handle requests for accommodation appropriately. Your company may be liable if a manager fails to recognize an employee’s need or request for accommodation and alert HR. An untrained manager puts the entire company at risk of being sued. It’s also important for managers to understand that the company really is committed to following the law, not just paying lip service to it. Managers need to be put on notice of their own disciplinary exposure for failure to comply.

Document the process! Now, more than ever, you must document everything! The accommodation process you engage in may be examined by strangers in a courtroom. Document all of your attempts at finding a reasonable accommodation, including the rejected accommodations, which are important to illustrate both that you are committed to the process and that there really isn’t anything you could have done to accommodate the employee.

If a reasonable accommodation is found and agreed on, state its length or any limits on it — leave no room for confusion about the nature of the accommodation. Put in writing that if the accommodation doesn’t work, then it will be stopped. Also document the fact that an employee’s requested or preferred accommodation wasn’t reasonable or posed an undue hardship, explaining the supporting reasons in detail.

 

The big picture

In the last two years, ADA-based charges filed with the Equal Employment Opportunity Commission (EEOC) have increased by 30 percent, and the new regulations implementing the ADAAA will make it far less likely that you will prevail in court by arguing that an employee isn’t disabled and therefore isn’t covered by the ADA. And, by listing conditions that are “virtually always” disabilities and expanding “regarded as” disability discrimination to cover most employees who have ever been seriously ill, the ADAAA could be construed to protect most people, which is exactly the position the EEOC will take. All of that increases the likelihood that you will have to contend with a failure-to-accommodate claim at some point.

To prevail on a failure-to-accommodate claim, you must be able to show, for example, that you made an accommodation, the employee failed to request or rejected an accommodation, or the employee failed to cooperate in the accommodation process. That evidence will be greatly enhanced if you have followed the recommendations above.