Is your organization inclusive? Does that inclusivity extend to all? How comfortable are you if an employee requests a Reasonable Accommodation? Let's dive into some details to familiarize you with some examples and support on this important topic.
What is a Disability?
The Americans with Disabilities Act defines “Disability” as “a physical or mental impairment that substantially limits one or more major life activities (sometimes referred to in the regulations as an “actual disability”).” Why is there specified language around “actual disability”? Because there is perceived disability as well. This can be a huge pitfall for employers if they make assumptions about or regard someone as being disabled. It also invites risk. Not all disabilities are physical, nor visible, and no two are alike. It’s best to go through the Interactive Process in order to explore how the employer can meet an employee’s individual, particular needs to perform their Essential Job Functions with potential accommodations.
What is considered an Essential Function?
Essential Functions are those that make up a large or critical percentage of the employee’s role(s) and responsibilities. If someone is a Cashier in Retail, an Essential Function would be interacting with customers and checking them out during their shopping experience. The same Cashier may have job functions such as cleaning the restrooms, sweeping the floors, or washing the store’s windows. While these are important functions, there is a distinction between whether or not it would be deemed essential. In making accommodations and entering the Interactive Process, the employer would want to consider whether an accommodation could be getting the employee some support or job-sharing certain activities with other employees. If an employee suffers from Anxiety in social situations, an accommodation could potentially be made to offer Job Coaching, to offer additional Team Lead, Supervisor, or co-worker support, or to limit shifts during which the employee would interact with customers. Note: The Interactive Process is very important here and it shouldn’t be solely the employer imposing their suggestions to the employee. The approach should be balanced and as the name implies, an interactive conversation.
Employees and employers often misinterpret this process as something that needs to be costly, time-consuming, or that is a list of demands from the employee. Employers are not obligated to endure Undue Hardship in order to meet an accommodation. The accommodation has to work on both sides, which is the goal of the Interactive Process. If the accommodation is deemed “unreasonable” or too costly, the employer may not have an obligation to accommodate. Let’s take an example of a large, multi-site organization where an employee requests an accommodation for a disability that impacts some cognitive abilities.
The employee has requested a piece of technology for their workstation that allows transcription of conversations for readability, comprehension, and other disability supports. The technology costs $1,200 and otherwise only requires a download onto the employee’s Program Files. Would this cause Undue Hardship to the employer? Not likely, given the facts we have here. There could be other factors to support the employer claiming a position of Undue Hardship though, such as the program’s download being in violation of certain company policies and protocols, exposure of the organization to risk, or other system barriers to implementation.
If implemented, does the employer need to make this same accommodation for another employee with a similar disability? Not necessarily and we encourage you to make each accommodation on a case-by-case basis and to fully-explore impacts throughout the discussions with the employee and any other stakeholders to gather the most information to make facts-based decisions. It is perfectly acceptable to request additional medical information from a provider, assuming the employer is doing so in good faith. At times, the employer may need to understand how to accommodate a request and there may be additional information needed from the provider during the course of the Interactive Process. Engage your Human Resources Department or Legal team in discussions of this nature to be sure all factors have been considered.
Have you heard the term “Universal Design” before? Job Accommodation Network (JAN) defines it here. In the spirit of Diversity, Equity, and Inclusion, we want to apply Universal Standards to making workplaces accessible to all. This means that for employees with and without disabilities, accessibility and equity is provided. Imagine creating an environment that supports and engages learners at all levels and abilities via the workplace design itself. Here are some guidelines for universal standards for the worksite and for the workstation.
Job Accommodation Network: https://askjan.org/ Job Accommodation Network Trainings: https://askjan.org/events/Trainings.cfm American with Disabilities Act: https://adata.org/factsheet/reasonable-accommodations-workplace State Vocational Rehabilitation Offices by State: https://askjan.org/concerns/State-Vocational-Rehabilitation-Agencies.cfm
Department of Veterans Affairs Vocational Rehabilitation Information: https://www.benefits.va.gov/vocrehab/index.asp Vocational Rehabilitation Experts: Experts on work place accommodations. Many states have private companies that you can contract with to have a Vocational Rehabilitation expert on your team should you see a need.
See what we've been up to lately:
Check out this WILead DEI Roundtable for more tips on Diversity, Equity, and Inclusion in the workplace. Our CEO Tiffany Castagno is featured as a speaker.
You can find us weekly on Saturdays at Let’s Talk HR Club on Clubhouse at 2 PM Eastern for a variety of HR topics!
FUN NEWS AND CELEBRATING A BIG MILESTONE!
What a difference a year makes! 🥳 CEPHR, LLC celebrated its LAUNCH-i-VERSARY on May 12, 2021!!! Thank you to all of our clients, #biztribe, Strategic Alliance Partners, and Community! CEPHR, LLC is proud to have accomplished so much during year 1- IN A PANDEMIC! We look forward to continuing to serve your needs in years 2 and beyond! Check out our LinkedIn post for some highlights from year 1!
Nothing in this article should be construed as direct Legal advice. This article is for educational purposes only. For Legal advice, we advise that you contact an Attorney.