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Whether it is the technology used in recruitment, the wording of pre-screening questions or a job’s essential functions, or—once applicants become employees—leave policies, employers often are getting the reasonable accommodation duty wrong, according to Lynn Clements, director of regulatory affairs with Berkshire Associates Inc. in Columbia, Md.
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Clements spoke during a concurrent session June 21 at the Society for Human Resource Management 2016 Annual Conference & Exposition.
An applicant tracking system (ATS) can be great for helping manage large applicant pools and, for federal contractors, tracking the race and gender of applicants. But, she asked, is your job application process accessible under the Americans with Disabilities Act (ADA)?
Some technology isn’t able to be used by people with visual impairments who use screen readers, she said. They may not be able to see drop-down menus or maps, for example.
If your technology is inaccessible under the ADA, there needs to be an alternative process to apply, such as by phoning for more information or using e-mail. Actually, employers need to do more than just provide a phone number or an e-mail address, Clements said. Some employers merely have one or the other, and when individuals with disabilities call or e-mail, they are told that they must use the online application system. This then proves to be a dead end. Alternatively, sometimes applicants’ phone messages and e-mails are never responded to. This is not good enough, she cautioned.
Wording of Pre-Screening Questions
The wording of pre-screening questions can be problematic under the ADA as well. Incorrectly asked questions may impermissibly screen out individuals with disabilities or constitute an unlawful medical inquiry, she said.
A good attendance rate, punctuality, the ability to work various shifts or rotate jobs, and the ability to work overtime all may be viewed as capabilities an employer wants its employees to have. The trouble is that the Equal Employment Opportunity Commission (EEOC) does not view these qualities as essential functions of a job. And if they aren’t essential functions, there must be accommodations made. True, some courts disagree with the EEOC, but why pick a fight with the agency, she asked, if it can be avoided?
Clements cautioned against pre-screening questions that ask, “Are you able to work overtime?” or “Are you able to work the third shift?” These questions require “yes” or “no” answers and an ATS or other technology may bump applicants out of consideration if they say “no.”
Employers can rephrase how they ask these types of questions. She recommended instead asking, “Are you able to work overtime with or without a reasonable accommodation?” or “Are you able to work the third shift with or without a reasonable accommodation?”
Really Essential Functions?
Sometimes individuals with disabilities are screened out because they can’t perform the job’s essential functions.
HR should ask the hard questions of managers to determine whether requirements that are listed as essential job functions on old job descriptions really are essential.
For example, a job description may say that it is an essential job function to be able to lift 50 pounds. But over time, technology or a change in the products that are manufactured or moved in a warehouse may have reduced the lifting requirement to 20 pounds.
Clements said that too often managers have a knee-jerk “no” response to accommodation requests. If HR doesn’t ask the hard questions about essential functions, she cautioned, the EEOC will instead.
Leave Cap Policies
The EEOC really doesn’t like policies that restrict leave. It has gone after lots of employers that simply fire someone after that person’s 12 weeks of time off granted under the Family and Medical Leave Act have passed, she added.
And if employers cap leave at, say, six months, even that will be frowned on if exceptions aren’t made as a reasonable accommodation. Just a few more days may be all the employee needs to return to work, Clements noted.
Sometimes employers don’t want to provide an accommodation, wanting instead to rely on the argument that it would be an undue hardship to provide. However, employers shouldn’t rely on the reasoning that it would be a financial undue hardship—that’s a loser of an argument in court.
If an employer really can’t accommodate because of an undue hardship, it should rely on the argument that it would be an operational hardship, and document why. Gather evidence if other employees have been working longer hours to make an accommodation feasible, if there is customer dissatisfaction or if managers who have to live with the accommodation are frustrated, she recommended. That way the employer will be better armed if it needs to defend its decision in court.
Allen Smith, J.D., is the manager of workplace law content for SHRM. Follow him @SHRMlegaleditor.
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