When employers grant accommodation requests, those accommodations should always be made on a temporary basis. Unfortunately, many firms unknowingly turn these temporary accommodations into permanent ones.
Preventing employers from trapping themselves in permanent accommodation situations was one of the major themes of Building a Better Mousetrap: Trends in FMLA & ADA Administration, a presentation by Ophelia W. Galindo at the Mid-Sized Retirement & Healthcare Plan Management Conference in San Diego.
Act early to prevent confusion
Ms. Galindo stressed the importance of making sure employers act early to prevent any confusion about the nature of the accommodation.
Here’s why that’s so important: Say an employee’s accommodation has been in place for a long period of time. The company decides the arrangement is no longer working out and tells the worker.
The worker then sues under the ADA, and the court sides with the employee. Its reason: The accommodation has been in place for this long without it impacting the company, so there’s no reason why it should all of sudden be an undue hardship.
In any communication about the reasonable accommodation during the interactive process and/or hardship analysis, it should be clearly stated that the accommodation is being made on a temporary basis.
From there, employers should revisit the accommodation regularly to see if the circumstances are still the same or if changes have taken place that could alter the accommodation.
How regularly? A 30-day increment usually works well, so HR pros should shoot for check-ins every 30 days, 60 days, 90 days, etc.
Another area that should be reviewed regularly: Job descriptions. Many job descriptions are poorly written, so “essential job functions” are difficult to pin down, says Galindo.
For example, if a job requires a high stress tolerance that should be listed in the description because it would impact the accommodation process.
Galindo also offered what she called “The Reasonable Test,” which is a very simple test to determine whether or not an accommodation is reasonable. If the accommodation will have a negative impact on the company as a whole, chances are it’s not a reasonable accommodation.
And chances are, the smaller the company, the easier it’ll be to prove the accommodation negatively impacts the entire workforce.
Of course, this test should never be used to make actual employment-based decisions. When the ADA is in play, the interactive process is always the way to go.
6 forms accommodations take
Galindo’s presentation also touched on the six major types of accommodation types employees generally request under the ADA, which include:
- Physical (a different chair, a special keyboard, etc.)
- Functional (being temporarily relieved of certain job functions, providing “sheltered” work environments for staffers with anxiety issues, ADHD, etc.)
- Environmental (Moving the employee to a different work environment, limiting his or her exposure to hot or cold)
- Work Hours (modified or reduced hours, alternate shift assignments, etc.)
- Time Off (intermittent absences, continuous leave), and
- Other (work aides, coaching, respite from attendance or discipline or attendance, service dogs).
Based on “Building a Better Mousetrap: Trends in FMLA & ADA Administration,” by Ophelia W. Galindo, the national leader of absence and productivity solutions at Buck Consultants, as presented at the Mid-Sized Retirement & Healthcare Plan Management Conference in San Diego.