The Americans with Disabilities Act is one of the more complex and challenging laws employers are navigating. What is the scope of the ADA? What do qualified accommodations look like at work? What might make for an accommodation that is declined?
But most importantly, as an HR professional, what is your responsibility to guide the team in looking for ADA violations, all toward creating a safe place for all employees? Terry Cook, our Senior Vice President of Employer Services, and Tom Jones, our very own attorney specializing in labor and employment matters, join Pete Wright this week to share what you need to know about ADA.
Episode Transcript
Pete Wright:
Welcome to Human Solutions. I’m Pete Wright. The Americans with Disabilities Act is one of the more complex and challenging laws employers are navigating. What is the scope of the ADA? What do qualified accommodations look like at work? And what is your responsibility to guide the team in creating a safe place for all employees? Terry Cook, our Senior Vice President of Employer Services, and Tom Jones, our very own attorney specializing in labor and employment matters, join me this week to share what you need to know about ADA.
We’re talking about the dos and don’ts of ADA. I think we need to start by setting the table with a definition. What is ADA? We’ve been dealing with it for years now. So it seems like this is just a review to set context for our conversation today.
Tom Jones:
The Law passed actually in 1990, so it’s 32 years old this summer as it turns out. The Americans with Disabilities Act passed in the climate of which they were trying to figure out a way to involve more disabled individuals in the workplace, remove obstacles to their being employed, both physical and mental disabilities. And so the challenge, if you will, the burden, if you will, on employers is that if you have 15 or more employees, then you must be able to consider whether or not you can hire that person. And to determine if that person’s disability represents an undue hardship on your business to employ them or not. So there’s a series of tests you go through.
First, is the person qualified for the job? No matter what disabled or not, if they are qualified, did they need a reasonable accommodation? And of course, we could find you a hundred lawsuits as to what constitutes a reasonable accommodation. But typical things would look at money to put an accommodation in place, the impact on the business. Is it a furniture adjustment? Is it a modification to the work schedule? Is it some other modification that is relatively easy to do? Is it very, very complicated to do? And so the more complicated it is and the smaller the business, the more likely to see it being an undue hardship. The bigger the business and the greater the resources, it’s more difficult to make an argument of an undue hardship usually. And so you make that accommodation, the individual comes to work and you hope that accommodation’s sufficient, but it might change over time. Someone’s disability may get worse, may a different disability, or the job being changed. And so you may need to go back and revisit the whole modification process, accommodation process to determine if you’ve done the right thing.
Pete Wright:
I want to ask this, a bit of a sideline question, Tom, because the way you set up our discussion of ADA is 32 years old, designed to even the playing field for all employees to have equal accommodations at work to get the job done. Has it worked? And I guess this question is for both of you, what is your sense of the state of ADA for employers? Has it changed the thinking around how we enable our workplaces for everyone?
Terry Cook:
So it really should, and probably has, in many cases changed. I know from a human resources perspective, one important piece that changed is that your job descriptions need to be ADA compliant. Part of that is, that means identifying everything that’s required of that job, whether it be a physical requirement, Tom’s mentioning scheduling, there’s certain pieces of it, physical, mental, and different aspects that are required of the job. And by having those basic definitions, it provides two things. One, it tells your applicant or employee what is needed to do that job. And then the second thing it would do would be to help find out what accommodations could be done for that job. And it would be useful if a doctor, for example, was providing a company with the information about what was needed as an accommodation to go into what Tom was referring to before, to determine if it’s an undue hardship or not.
So it really did change the way human resources might set up their job descriptions. And then it made the company really think about what really was needed to do each job, to make sure that everyone that could do the job would be able to, even if it meant an accommodation as Tom mentioned.
Pete Wright:
Okay, should we dig in a little bit more specifically to what is qualified as a reasonable accommodation? What should employees be able to expect?
Tom Jones:
Well, clearly I’m picking up exactly on what Terry said. So once the job description’s in place and you’ve thought through what the job should entail, that means opening the idea of what constitutes a reasonable accommodation. So an individual comes along, they’re qualified to do the job, but they have the disability. So we don’t know what the disability is yet. It could be difficulty walking, standing, sitting. They may not be able to get to work early in the morning because there’s some disease that prevents them from getting ready to be here at nine o’clock, something like irritable bowel syndrome or something like that. There’s all sorts of disabilities out there. Then you begin to open that door between HR. They’re probably the manager and the employee, okay. What’s the reasonable accommodation? And it’s really going to be an interactive dialogue between you’re going to have to go back and forth, pose questions and say, how about this? Does this work? Can we modify the schedule? Can we modify the equipment, the furniture?
And we’ll have in the background, this medical certification as to what the person can do. But then we’ll have to figure out on a day to day basis, how is that going to work in our workplace? But you want to make sure you document that process. So if I go back and forth with someone and say, all right, let’s try this and we try it. And a month later it doesn’t work and we have to go to something else, we want to document that we tried that, had to switch over to do plan B, then had to switch over to do plan C, so that we can create a record to show that we did not just sort of arbitrarily ignore the person’s request. We tried to do everything we could to meet their demands. Demand is the wrong word. To meet their requirements, to be able to perform the job.
Terry Cook:
Yeah. And I think the other piece that I’ll just say along with Tom is a lot of companies tend to try to guess and assume what somebody might need for an accommodation. And in reality, the best approach probably is to find out from that employee when they bring up, or an applicant brings up some type of accommodation need, really just bringing up that interactive discussion to say, “It sounds to me like you might need an accommodation to do this job successfully. Here’s the job description. If you wouldn’t mind, just bring this to your doctor and then bring us information back to tell us what type of accommodation you may need to do this job well and safely.” And you go on to the interactive discussion as Tom mentioned from there. So instead of saying, oh, I know what you need. You need A, B, C and D. Let’s find out.
Pete Wright:
Yeah. ADA is not a menu. Okay.
Tom Jones:
The other bit of the history of the law is that from 1990, well, ’92, when it really took effect until 2008, there was a lot of court cases that decided, well, this person doesn’t really need an accommodation because they’re not disabled. Because if you put the glasses on, all of a sudden, they become no longer visually impaired, they can see. Or if they put a hearing aid in, they’re no longer deaf, or whatever it might be. And the Congress in 2008 came along and said, no, no, no, you’re misunderstanding the law. The law is about helping to get disabled people in the workplace. It’s not about looking for clever ways to get around compliance with the law. And so I think since 2008, there’s really been a water shift, a real shift in thinking about how employers try and do this. And they’ve really made a much more concerted effort to figure out how can we bring people into the workforce with whatever might be the reasonable accommodation. And you don’t have to spend a fortune to do it in many cases. Might just be a simple furniture modification.
Pete Wright:
Besides furniture modification, I mean, I know that there is just a cultural shift in how we think about neurological diversity, for example. I mean, are accommodations counted for things like ADHD, depression, mental health issues. Does that fall under ADA?
Tom Jones:
I’m only laughing because I have Parkinson’s disease and AIM has been fantastic. They’ve been all sorts of ability to help me manage the disease. So yeah, it’s true. AIM has been sensational. Sensational because they’ve listened. I’ve posed bits of information, made modifications. So I have, for example, that Dragon software where you can write by speaking.
Pete Wright:
[inaudible 00:08:57], sure.
Tom Jones:
Been able to work from home a fair amount, pretty much continuously. So an employer didn’t have to make a huge number of changes to the plan, but they did some. So there’s an example. So yes, I think more and more companies, and it may be the pandemic opened some company’s minds to that, eyes to that is that. They said people can work from home, and if there’s some physical and neurological or other situation, doesn’t matter, because they can still do the job remotely. But it varies by companies. But I think a lot of companies have shifted their thinking. They think that okay, well at the very least, we can try it.
Pete Wright:
Well that I think is the really interesting perspective, maybe that is a gift from the pandemic that accommodations. And I wonder just how much the thinking has changed that if an employee comes to a manager with a reasonable accommodation, that the company is going to be more considerate of it, even in the absence of ADA. Even if it’s not a requirement, just because it makes a healthy work environment to make sure everybody’s heard. Terry, what do you think? Am I whistling?
Terry Cook:
No, I think you’re 100% right. I think it’s all about hearing what the employees say. I mean that’s important all the time, but you add to that a tough labor market right now, and what’s going on out there and trying to find employees, especially trying to find employees that are committed to companies. You have to show a commitment to the employees as well. So I think you’re 100% right, that I think that the pandemic has certainly opened a lot of our eyes to being able to listen and make those accommodations.
The only additional comment I would like to make as Tom was mentioning is to request an accommodation. And you were asking what brings us to that? It’s really when a major life activity is affected by an illness or a disability of sorts. So I mean certainly listening could be, it’s inconvenient for me to have to go to work today because I really want to be home. Instead, there’s no reason potentially behind that as a major life activity, or an illness, or something to request an accommodation. That’s purely a, I think this is more convenient for me, and I’d like to bring it to your attention, to see if it’s a possibility versus really being an accommodation under the ADA.
Pete Wright:
Okay. So then let’s talk about the other side, when accommodations are denied. We’ve talked about undue hardship for the company. What is the context under which an accommodation is likely to be denied? Can you give us some examples?
Tom Jones:
It could be a smaller business. I mean, remember the threshold is 15 or more. So it could be a company, let’s say 20 people. And the cost of the accommodation would be so significant that the company didn’t have the resources to do that. Let’s say you had a building they didn’t own, but the requirement would be to put an elevator in that building. It may be something that’s so burdensome, they can’t afford to do it. So could be something like that. Could be that the very nature of their work requires people to physically be there. And so the idea of working from home isn’t an option because it’s a manufacturing, or it’s a logistics business, or it’s something along those lines and you can’t do it remotely. So maybe they say, well, we’d love to do an accommodation, but we can’t because the very nature of what we do and your disability, I mean, it’s impossible.
But the key thing is to remember that that’s got to be a product of a discussion. That’s a back and forth between the HR, probably the boss involved, and the employee over what’s the possible options. And they reach a point and say, “Well, okay, we can’t do it now. And so we can’t continue to have you in this position.” And what the law would say is, is there an alternative position that you could put this without firing somebody? If there’s an open job, is there an alternative? If there’s no alternative, then the company can say, sorry, but we can’t continue to employ you.
Pete Wright:
Is this a thing that we’ve been running into? I think again, a gift of the pandemic is understanding so many more of these sort of cupboards are getting opened for us, is the idea that somebody might be a “at risk individual” and are unable to, for one reason or another, get vaccinated. So they can’t be in place. Would that be considered something that would fall under ADA? That suddenly their job is requiring them to be on site, but they can’t be on site because of a medical condition that requires them to be, or that makes them at risk so they have to work at home? Is that an ADA kind of a consideration?
Tom Jones:
Could be. You’d want to know a little bit more about what’s the risk, what’s the issue? It’s so hard because so many people who said they didn’t want to be vaccinated were mixing up into beliefs and politics, as much as it could be religion, it could be disability, it could be politics. But it’s hard to know for a lot of employers and how to sort that out. But it could be. I mean, it’s a discussion you’d want to have with that individual.
Terry Cook:
No, I would agree with Tom. I think it could be. I think sometimes the other questions that we came up with and we’ve talked to some members about it is going back to the doctor to say, “Is the only option to stay home, or is there options to wear masks, or keep them the employee away from other employees?” So again, going back to that interactive discussion that Tom keeps talking about.
Pete Wright:
Okay, then I’d like to transition to the next part of our conversation, where we introduce ADAdar, the radar that you need to have as an HR professional to be on the lookout for ADA violations. What is it? What would you consider an ADA violation? When does that become troublesome for an organization?
Tom Jones:
I mean, could be, if somebody has a reasonable accommodation in place, and let’s say a supervisor or someone is trying to compel them to do something beyond what the accommodation would require them to do. That could create a problem. But there’s a limitation, that the company’s aware of the limitation, but they’re saying, “Gee, you can do this. You’re the only person here. We need you to pick up that extra weight” or whatever that might be. That could invite a violation of the law.
Terry Cook:
Yeah, I would agree. And then sometimes it even happens before that, where an applicant might talk to a supervisor versus the human resources person. And they might say, “I’d like to be in your machine shop.” And they might see the person that is in the wheelchair that’s coming in. And the supervisor unknowingly may say, “Oh, I’m sorry. We just can’t accommodate that” without really knowing if they talk to an HR person. And this actually happened to me at one of my companies where there was a person that came in, and his only request of accommodation would be he had every ability to run a machine. The controls just had to be lowered so that he could reach them versus them being at a standing height, which was something our company was happily able to do.
But thankfully, as the supervisor was talking to the applicant and was about to say, no, he thought enough to pick up the phone and call me and human resources and say, “This is what I think I’m going to do, but I want to make sure I’m okay to do it.” And we were able to kind of stop that. But if that same supervisor didn’t think to pick up a phone and call human resources and just said, “Nope, we’re not able to do anything for you.” That person might have been able to file some kind of complaint because it really wasn’t any expense whatsoever to get the control lowered to the height where he needed to be at. And he was a very, very skilled machinist and was a great addition to our staff.
Pete Wright:
What is the general chain of communication when there’s a violation in place? Let’s say that particular individual was frustrated and wanted to file some kind of complaint. Your phone’s going to ring as an HR professional. Who’s calling you?
Tom Jones:
Probably the Equal Employment Opportunity Commission, which enforces the ADA though most states in the country have their own mini ADA. Massachusetts has one that’s so old they use the term, handicapped, in the law. But it’s basically the same provision that for someone with a disability, if they have six or more employees in Massachusetts, you can bring that litigation. So you’d be challenging. So the lawsuit we get filed at the EEOC or at the MCAD. Terry as the HR manager would get a phone call or get a letter delivered to her saying you’re being sued for the following reasons. Failure to make a reasonable accommodation, failure to engage in the interactive process, whatever might be out there. You put obstacles in place to this person applying for the job, whatever it might be. And she then has to reconstruct what happened, exactly what you were just saying before. What happened? Say who did what? Who said what? When did it occur? What mistakes, if any, were made? And trying to reconstruct that, and they become very complicated fact intense cases.
Pete Wright:
As we get to wrapping up here, how does an HR professional stay up to date? As we’ve already introduced the nature of what is coming in as disability under the ADA, continues to evolve, and change, and requests become more of a conversation, how do you stay up to date? What sort of resources do you count on to keep you apprised of changes in the ADA?
Terry Cook:
Sure. I think part of that is us. So we here at AIM HR, we are constantly keeping our members updated on any changes to the law. And maybe not even changes to the law, just stating the law, but also showing that practical application about how it will affect them in the workplace. So it’s not just quoting law, but really saying, this is exactly how you could be at risk. Here are some really good examples of how. We did a lot of that as you mentioned, Pete, with COVID and trying to find out new accommodations that might be coming forward and requested. There’s additional disabilities always being added or seen through as Tom mentioned, lawsuits that come through. So just that constant education, we educate people. And then it would be a matter of human resources people continuing to keep up on those resources and those articles as they get updated.
Tom Jones:
I mean, one of the other things that’s, for example, this new area that emerged in the last five or six years was websites. Many, many companies would say, go apply on our website, go apply on our website. And there’s a whole series of cases all over the country in which people are suing companies over their websites because they’re not disability friendly. So for example, if someone is visually impaired, they don’t have a voice speak out and say, this is what you have to do for the application. Or if someone’s deaf, they won’t have someone else explaining in sign language, what you have to do to complete the application. And so companies have been losing these lawsuits all over the country.
And eventually one will go to the Supreme Court, but a lot of the federal circuits have taken different stands on it. Many of them saying that the company was wrong to do it that way, but some cases not, they’d been supporting the company. So eventually it’ll go to the Supreme Court, but that’s an area that’s emerged probably in the last six, seven years. There’s a whole new area of litigation over the ADA that some of it may be arguably a little extreme, but doesn’t matter. Some companies are saying if that’s the only way you can apply for a job here, you’ve got to make sure it’s as disability friendly as if we’re coming into an office.
Pete Wright:
Sure. Well, where we sit, it seems to be so much more of a, let’s focus on doing the right things to do, to enable the most people to engage with us, whether they’re employees or customers, whatever. And so it is nice to see this shift and having these levers being pulled in order to make the world of work more accessible. So sure appreciate you both taking the time to talk about ADA, the dos and don’ts of ADA. If you want to learn more, head over to aimhrsolutions.com. We’d love to see you over there. On behalf of Terry Cook and Tom Jones, I’m Pete Wright. Catch you next week right here on Human Solutions.
