May 5, 2021
Navigating the ADA During the Pandemic
The Americans with Disabilities Act can raise a plethora of questions for employers: What is considered a disability under the ADA? How do you know if an employee has requested a reasonable accommodation? How and when should you engage in the interactive process? Can you request medical information? What’s a ‘reasonable’ accommodation?
Many employers have been inundated with requests for accommodations during the pandemic. Addressing these while ensuring compliance with the ADA can be tricky. “With the ADA nothing is set in stone,” said Tracie DeFreitas, Lead Consultant with the Job Accommodation Network. “There are no forms you have to use. Even the interactive process is not spelled out from A to Z. So it’s important for employers to have a procedure in place that everyone who is responsible for accommodation requests is trained in so you have a consistent process.”
In a recent webinar produced by the Disability Management Employer Coalition, DeFreitas explained the basics of the ADA and responded to oft-asked questions from employers and others. The following represent some of the most pressing concerns about the ADA.
What constitutes a covered ‘disability’ under the ADA?
There is no specific list of ‘disabilities’ under the ADA. Essentially, it is an actual physical or mental impairment — or the history of one — that substantially limits one or more major life activities.
What is a reasonable accommodation?
A change or adjustment to a job or work environment that permits an applicant or employee with a disability to participate in the hiring process, perform the essential functions of the job, or to enjoy equal benefits and privileges of employment.
The Equal Employment Opportunity Commission does make reference to some accommodations that they believe are reasonable on their face, like job restructuring, making facilities accessible, modifying a policy or a schedule, or reassignment; as well as accommodations that are not considered reasonable — like removing essential job functions or providing personal use items that are useful on or off the job, or lowering production standards and creating new jobs.
What is the interactive process (IP)?
This is the requirement under the ADA that employers must engage with employees who have requested an accommodation to work together to find solutions. It is among the most challenging aspects of the ADA for employers, as there are few specifics about how and when it should be undertaken.
It’s important to engage employees with a solution-oriented approach. When HR and management are supportive and open to identifying positive solutions that improve employee productivity, it creates a disability inclusive culture and is a way to engage all employees — including employees with disabilities — in a process of looking at solutions.
It need not be complicated to engage in the IP and provide accommodations. The process of determining what accommodations will be provided doesn’t have to be difficult if you focus on solutions. JAN, which is a free federal resource, has a number of resources available on its website, askjan.org, in the ‘A to Z’ section under the category interactive process.
How do you know if a request for accommodation has been made?
Recognizing that a request for accommodation has been made is the first in a 6-step process for engaging in the IP. Such requests generally don’t come in a tidy, easily identified package. A request is made when an employee or applicant asks for an adjustment or change at work for a reason related to a medical impairment. There must be a connection between the medical impairment and a work related issue. Without that nexus, there is no request for accommodation.
“I’m having difficulty concentrating because of medication side effects,” and “I need to go to counseling appointments once a week and would like to flex my schedule on those days,” are examples of requests for accommodation. However, there is no required process and no standardized ADA forms for requesting accommodation. An employee is not required to assert their right under the ADA, or use the term ‘reasonable accommodation,’ which can make it difficult. The request also does not need to be submitted in writing under the ADA.
While there is no specific time frame for an employer to respond to an accommodation request, best practice is to have a person or persons trained to take responsibility to act. Employers have been found liable under the ADA when management or HR has failed to recognize and act on a request for accommodation. A request for accommodation should set the IP in motion.
Can an employer request medical information?
Employers are only required to provide accommodations under the ADA for a known disability. When the disability and the need for accommodation are not known or obvious, disability disclosure or information about the disability will be necessary to receive an accommodation. When disclosure occurs with a request for accommodation and the disability is not known or obvious, an employer may request disability-related documentation to substantiate that disability.
Gathering information is the second step in the IP process. To determine if a person is entitled to an accommodation, they must have or have had an impairment that limits a major life activity. With an unknown disability, an employer is permitted to request reasonable medical information. However, it’s important to remember not to ask for too much information. The ADA does restrict asking for too much information, especially during the pre-offer and employment phases.
What if coworkers ask about accommodations?
A question that often arises during the implementation of accommodations is whether other employees can be informed about them. While the implementation might require communication with some people, employers may not disclose to other workers that a coworker is receiving an accommodation for a disability related reason because of the ADA’s confidentiality rules. So responding in these kinds of situations can be a little tricky.
When responding to these questions, point out that the employer has a policy to assist any employee who encounters difficulties in the workplace, and that many workplace issues are personal and that under the circumstances the employer wants to respect the individual’s privacy; so they are not going to talk about the situation.
One tip to consider before such questions even arise is to educate all employees about the ADA and accommodations as a way to curtail questions related to the provision of accommodations. Also, having a culture that values workplace flexibility emphasizes that people may ask for they need at work.