How to Create a Robust Reasonable Accommodation Process
7 steps to help you manage ADA accommodation requests, mitigate risk and support an inclusive workplace.
Introduction
The general manager was in a quandary. As an employee at Sodexo, a food service and facilities management company, she was responsible for all operations at her site. The kitchen was already short-staffed, and now the senior cook had been diagnosed with a seizure disorder and was asking for workplace accommodations. She wanted to help but also needed to make sure the work got done.
Fortunately, Sodexo had a well-established procedure in place. The manager contacted the company’s HR team and discussed concerns she had about staffing and safety. The employee relations representative requested more information from the cook, including input from his physician, and worked with the general manager to fully evaluate the accommodation request. The employee agreed that he could continue to fulfill his essential job functions while avoiding work that involved climbing or lifting heavy objects.
The end result: a happy manager who didn’t have to recruit and train a new cook, a happy employee who could continue to work, and an HR team in full compliance with federal law.
Experts say that most accommodation requests can work out this way—if employers lay the right foundation.
That’s more important than ever given a recent rise in workplace accommodation requests, driven in part by the Americans with Disabilities Act Amendments Act (ADAAA), which Congress passed in 2008 to broaden the definition of disability and make it easier for employees to seek workplace accommodations. At the same time, U.S. obesity rates have more than doubled since the 1970s—which has led to an associated rise in weight-related health problems such as high-blood pressure and diabetes—and more older employees, who have a higher incidence of disabilities, are remaining in the workforce.
“Employers are seeing more requests, and they are taking them more seriously,” says Jonathan R. Mook, an employment law attorney with Alexandria, Va.-based law firm DiMuroGinsberg.
The following seven steps can help you make sure your workforce accommodation efforts promote an inclusive culture.
Step 1: See the Value
Employees can sense when company leaders are just going through the motions, even if HR says all the right words. “The biggest issue is a negative attitude toward accommodations,” says Linda Batiste, principal consultant with Washington, D.C.-based Job Accommodation Network (JAN). JAN is a free service of the U.S. Department of Labor’s Office of Disability Employment Policy that fields thousands of calls a year from employees and employers dealing with accommodation requests.
“We can tell when [an employer] first starts talking if they really don’t believe in making accommodations. If that’s the case, it’s not going to work,” Batiste says. Approaching requests from an adversarial position sets up an “us versus them” environment that rarely ends well for anyone.
Negative views often spring from misinformation. “A lot of employers think that accommodations are going to be difficult to make and cost a lot,” Batiste says. But JAN’s annual research shows that 59 percent of such modifications cost absolutely nothing, while the rest typically amount to about $500.
“Accommodating employees in the workplace should actually save employers money because the alternative, in many cases, is putting the employee on leave, and many [employers] have short-term disability policies,” says Joan E. Casciari, a partner at Chicago-based law firm Seyfarth Shaw.
1 in 5
U.S. adults has a disability.
Source: Job Accommodation Network.
A solid process can also protect a business from employee injuries (e.g., Sodexo restricting the cook with a seizure disorder from climbing), lawsuits and Equal Employment Opportunity Commission (EEOC) charges. “To litigate one of these claims will cost 10 or 20 times the amount that it would have cost the employer to adequately fund the HR department” to assess and document and provide these requests, Mook says.
There are also less tangible, but no less important, benefits for the corporate culture. “From a retention perspective, when you’re able to show people that you truly care, that they’re able to bring their true selves to work, that’s valuable,” says Dawnita Wilson, the Gaithersburg, Md.-based director of global diversity and inclusion at Sodexo. “It contributes to an inclusive culture and environment, allowing people to be open about what their needs are.”
Step 2: Put It in Writing
Make sure you have a formal policy on workplace accommodations. Key points that the document should cover include:
Basic information on the ADA. Don’t assume employees know their rights. Explain the statute in broad terms, but avoid outlining examples of what would and would not be approved. “It all depends on specific facts of the situation,” Mook says. “You can’t check off the boxes.” Getting too specific in the written policy could come back to bite you if an employee later contests a denial.
Guidelines for submitting a request. Gather accommodation request information from an employee, preferably in a face-to-face meeting with an HR representative. Requiring employees to submit a request form is fine, but it is no substitute for talking in person or by phone. This exchange is known as the “interactive process,” and, in some jurisdictions, failure to engage in it is an independent violation of the law, Casciari says. Be sure to collect information on the challenges the employee is having on the job and any accommodations that he or she suggests. Documentation from an employee’s doctor may not be necessary. It can be requested later if needed.
The appropriate point of contact. It’s best to designate one person or unit in the HR department to receive and manage all accommodation requests. “They should not be handled ad hoc by a supervisor,” Mook says. “I suggest that the HR person speak directly with the employee” and get the info from him or her. This approach provides more consistency and ensures that HR is apprised of all related circumstances.
Communication standards. Explain what, when and how HR will communicate with the employee about his or her request. (See Step 6: Document and Communicate.) Setting expectations at the beginning of the process could help reduce employees’ apprehension and cut down on unnecessary phone calls and e-mails.
Step 3: Get Job Descriptions in Order
A job description is the template for determining “essential job functions,” which are in turn what the EEOC and courts use to consider what constitutes “reasonable accommodation” and “undue hardship” under the law. “Generally speaking, an employer is not required to remove essential functions from a job or create a job for a person who is unable to perform the essential functions of his or her position,” Casciari says.
Job descriptions should be as specific as possible, tailored to your organization and updated periodically to ensure accuracy. Make sure new hires attest that they have read and received a copy of their job description during onboarding, experts say, and advise managers to review job descriptions with employees as part of their annual performance evaluation. Ask employees to provide feedback on their essential job functions each year, make any necessary changes and have them sign the document. “The job description should be an evolving document,” Mook says.
[SHRM members-only toolkit: Developing an Accessible Workplace]
Step 4: Train, Train, Train
Even the best procedures are of no use if managers and staff don’t know about them. Accommodation policies should be part of onboarding training, and managers and supervisors should understand how to recognize and react to employees’ needs.
“One of the major mistakes we see is that front-line supervisors are not properly trained,” Batiste says.
At Sodexo, ADA accommodations are covered as part of the employer’s “disabilities in the workplace” training, and front-line managers and supervisors receive additional instruction. “We encourage ongoing diversity training,” Wilson says.
75%
of disabilities are not easily noticeable.
Source: Job Accommodation Network.
Other points managers and supervisors need to understand: Even a casual conversation between employee and supervisor can qualify as “awareness” under the ADA. “Even if the procedures say ‘go talk to HR,’ an informal request is enough to trigger the employer’s responsibility,” Batiste says. The law doesn’t say that the request has to be formal; as long as the employer has “constructive knowledge” of the disability, the organization is legally required to begin an interactive dialogue.
All requests and accommodations, no matter how minor, should go through the process. “An issue can arise [later] when the employee says, ‘my prior supervisor let me do it for the last five years, but my new supervisor says no more,’ ” Mook says. “Then HR is blindsided.”
Supervisors should be trained to avoid discussions about employees’ disabilities, the merits of their accommodation requests or the efficacy of their accommodations with the employee or with others. If a worker initiates a conversation, the manager should refer him or her to the HR rep.
Step 5: Evaluate the Right Things
Don’t focus on the validity of the employee’s claim. Instead, hone in on the disability’s relation to the employee’s essential job functions and the practicality of available accommodations. “It’s generally not worth arguing whether or not an employee is truly disabled,” Mook says. “Let’s assume they are.”
The ADA requires that employers make “reasonable accommodation” to allow covered individuals to perform the essential job functions unless accommodation creates an “undue hardship” for the employer. Undue hardship can include costs relative to the size and revenues of the company, impacts on production volume or quality, and disruption in the workplace. “An employer is not required to reduce its qualitative or quantitative standards as an accommodation,” Casciari says, “but it is required to explore ways to allow the employee to perform at the required level.”
An accommodation request is never closed ... check in with the employee and manager regularly to see how the accommodation is working out.
Often, workers will have their own ideas about modifications that could work, but the employer is ultimately responsible for researching equipment, tools and costs. JAN can be an invaluable resource for this, as can affinity groups for specific disabilities and health conditions, such as the American Diabetes Association and the National Federation of the Blind.
If you decide to offer a different accommodation than that requested, be prepared to defend the choice. If employees ask for a specific type or brand of equipment, for example, consider the request carefully. Document the decision, retain any supporting research in the file, and follow up regularly with the employee to assess the accommodation’s effectiveness.
5 Mistakes to Avoid When Handling ADA Accommodation Requests
Mistake No. 1
Assuming an adversarial stance. Adopting an “us versus them” attitude rarely works out well for either side. Instead, focus on how the process can support business goals such as improved retention, injury prevention, and diversity and inclusion.
Mistake No. 2
Allowing front-line supervisors to evaluate requests. Managers should be trained to refer any employee requesting accommodation to the designated HR representative. Having one person or unit responsible for handling accommodations is the best way to ensure consistency and legal compliance.
Mistake No. 3
Trying to prove the employee isn’t disabled. The ADA Amendments Act of 2008 broadened the definition of disability considerably. Legal experts say it is very difficult to disprove an employee’s disability claim. Instead, focus on evaluating the disability’s impact on the essential job functions and the practicality of the available accommodations.
Mistake No. 4
Keeping it to yourself. Establish a confidential file separate from the employee’s personnel file, and document every conversation scrupulously. You should still speak with the employee on the phone or in person, but follow up with a written memo and include it in the file. Be sure to keep the employee informed of the request’s progress; lack of communication leads to frustration and distrust.
Mistake No. 5
Closing the file. Even after a request is approved and the accommodation is implemented, follow up regularly to ensure that the changes are working for everyone involved. Set a regular schedule for follow-up during the first year, and make an accommodations check-in part of the annual performance evaluation process going forward. Document all follow-up activities as they occur.
Source: Job Accommodation Network.
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Step 6: Document and Communicate
You know the old saying “If it isn’t documented, it didn’t happen”? Record-keeping should be initiated as soon as the request is brought to HR’s attention and should continue throughout an employee’s tenure. “Even if a form is filled out, document it,” Mook says. To ensure employee privacy, it’s a good idea to maintain a separate confidential file for the accommodation process rather than including that information in the employee’s personnel file.
Remember, documentation is not just for the company’s protection; it should also be used to communicate with the requesting employee. “It is very helpful to communicate with the employee all along the process,” Batiste says. Without regular updates, employees can feel forgotten and suspicious of the company’s intentions. Telephone and in-person updates feel more personal; just be sure to document the conversation afterward and provide a copy to the employee.
Who You Gonna Call?
ADA accommodation resources for employers:
This federal agency, a service of the U.S. Department of Labor’s Office of Disability Employment Policy, offers a wealth of free information for employers and individuals. The website provides access to a searchable database of accommodation options; an A-to-Z listing organized by disability, topic and limitation; access to training webinars; podcasts; and more. Employers and individuals can also call the JAN hotline at (800) 526-7234—(877) 781-9403 for TTY—for free, confidential technical assistance on job accommodations and the ADA.
Employment Law Information Network
While not exclusively focused on the ADA and workplace accommodations, this website offers a variety of information on disability employment law through its blog posts and news aggregation. It also provides templated language on ADA policies for employee handbooks.
NELI is a nonprofit continuing education organization that conducts employment law seminars, teleconferences and webinars for employment and labor attorneys and continuing professional education and HR recertification for human resource and other professionals in the field. The organization also provides in-house ADA training, expert witness services and a variety of downloadable publications.
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Step 7: Follow Up Regularly
An accommodation request is never closed. Even after the change is approved and implemented, check in with the employee and manager regularly to see how the accommodation is working out. Don’t assume everything is fine just because no one is complaining to HR, Mook says. “Saying ‘the employee never raised an issue’ doesn’t mean the employee can’t raise the issue later.”
A follow-up schedule can lengthen over time. For example, it may make sense to check in with the worker and the manager a few weeks after initial implementation, followed by quarterly meetings during the first year. Going forward, an accommodation check-in should become part of the person’s annual performance review. Be sure the employee and manager know they can bring any changes or issues regarding the disability or accommodation to HR’s attention at any time. And of course, document all follow-up measures in the confidential file.
Follow these guidelines consistently and continually and your employees will feel valued, your organization will be protected, and your workplace will be more productive.
Jennifer Arnold is a freelance writer based in Jacksonville Beach, Fla.
Illustration by Michael Glenwood for HR Magazine.
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