ADA Documentation Is Key to Compliance

By Allen Smith, J.D. Nov 23, 2016

HR professionals and managers need to work together to ensure proper documentation of compliance with the Americans with Disabilities Act (ADA), according to David Fram, director of ADA and equal employment opportunity services with the National Employment Law Institute (NELI).

Speaking on Nov. 18 at the NELI Employment Law Conference in Washington, D.C., Fram recommended that managers be trained to recognize when accommodations have been requested and to first try to provide simple, easy fixes.

"How can I help you?" should be managers' mantra when responding to accommodation requests.

HR, meanwhile, should document:

  • That the person said that he or she has an impairment.
  • That the supervisor asked, "How can I help you?"
  • The requested accommodation.
  • Whether the manager agreed to the accommodation.
  • That the manager refrained from asking for any medical details.

And then HR should be sure to follow up and re-engage if the initial fix isn't working. At that point, the employer may want to seek documentation that the person has a covered disability, if the disability isn't obvious. But if there's a quick, easy fix, "Why go through the ADA [interactive] process?" Fram asked.

[SHRM members-only toolkit: Accommodating Employees' Disabilities]

What's an Unreasonable Delay?

Sometimes, there isn't a quick fix. That raises the question of what's an unreasonable delay in providing an accommodation.

The Equal Employment Opportunity Commission (EEOC) has said that an employer's response to a reasonable accommodation request should be "expeditious." But what does that mean?

The EEOC said in Michelle G v. Lew (Treasury), 2016 EEOPUB LEXIS 1247 (2016), that relevant factors pertaining to a delay include:

  • The reason(s) for the delay.
  • The length of the delay.
  • How much the individual with a disability and the employer each contributed to the delay.
  • What the employer was doing during the delay.
  • Whether the requested accommodation was simple or complex to provide.

In this case, an Internal Revenue Service correspondence examination technician needed a quiet work area because of cognitive issues. There was an "egregious delay" when it took the agency 18 months to provide that accommodation, the EEOC determined. The delay was due to the employer waiting on appropriate requested documentation from the employee's health care professional, which the agency said was inappropriate.

In Adams v. Anne Arundel County Public Schools, 789 F.3d 422 (4th Cir. 2015), the court determined that the employer acted in a timely manner in reassigning an employee within one week of his return to work after taking medical leave. Reassignment is a reasonable accommodation, though an accommodation of last resort.

In another example, a delay of up to one month to provide an employee with an in-office printer was not too slow for a government agency responsible for spending taxpayer money, an appeals court ruled in Cloe v. City of Indianapolis, 712 F.3d 1171 (7th Cir. 2013).

But in Johnson-Morgan v. Department of Labor, 2013 EEOPUB LEXIS 50 (EEOC 2013), a delay of three months was "undue" when the requested accommodation, a flat-screen monitor to reduce glare, already was onsite.

Essential Functions

When accommodating a qualified employee with a disability, an employer does not have to waive the essential functions of the position. The employee instead must be able to perform them with or without a reasonable accommodation.

Sometimes, though, an employer will choose to go beyond the ADA's requirements and waive those requirements on a temporary basis in the hope that the person's condition will improve or that licensure credentials can be reobtained. Ordinarily, courts won't penalize employers for going beyond the ADA's requirements, Fram said.

In Knutson v. Schwan's Home Service, 711 F.3d 911 (8th Cir. 2013), a court did not punish the employer because the employer let a manager stay in his position for nine months after he was no longer qualified according to Department of Transportation (DOT) specifications. The employer had been optimistic that the employee's eye condition would improve and the employee would again become DOT-qualified.
If an employer forgoes essential functions for a period of time, it should document this, Fram said. He recommended that employers document:

  • That the employer and the employee understand that the functions are essential to the job.
  • That, according to the employee's accommodation request, the employer is not making the employee perform an essential function on a temporary basis.
  • That what is meant by "temporary" is up to the employer.


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