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Thursday, September 15, 2011
Alphabet Soup? Employing the Disabled (Part 4 of 5)
Posted by Sarah Conroy on 9/15/2011 1:24:00 PM
Undue Hardship (cont’d)
Regardless of cost, you do NOT need to provide an accommodation that would pose significant difficulty in terms of the operation of your business. A couple of examples provided by the EEOC itself:
Not reasonable - A store clerk with a disability asks to work part-time as a reasonable accommodation, which would leave part of one shift staffed by one clerk instead of two. This arrangement poses an undue hardship if it causes untimely customer service.
Reasonable - An employee with a disability asks to change her scheduled arrival time from 9:00 a.m. to 10:00 a.m. to attend physical therapy appointments and to stay an hour later. If this accommodation would not affect her ability to complete work in a timely manner or disrupt service to clients or the performance of other workers, it does not pose an undue hardship.
In addition to actions that would result in undue hardship, you do not have to do any of the following:
provide an employee with an adjustment or modification that would assist the individual both on and off the job, such as a prosthetic limb, wheelchair, or eyeglasses;
remove or alter a job's essential functions;
e.g. - grocery store bagger develops a disability that makes her unable to lift any item weighing more than five pounds. The store does not have to grant an accommodation removing its fifteen-pound lifting requirement if doing so would remove the main job duty of placing items into bags and handing filled bags to customers or placing them in grocery carts. (The idea instead would be to determine how that employee might use an adaptive technology to meet these requirements, or apply for a transfer. If transferring, there is no obligation to hire, employee must still be able to do that job and a job need not be created for the purpose).
lower production or performance standards;
excuse violations of conduct rules necessary for the operation of your business.
So, How does an employee ask for an accommodation?
An employer generally does not have to provide a reasonable accommodation unless an individual with a disability has asked for one, even with the ADAAA changes. (Because the ADAAA focused almost exclusively on changing the definition of disability, procedure is largely unaffected by the new law.)
A request can be a statement that an individual needs an adjustment or change in the application process or at work for a reason related to a medical condition. The request does not have reference the ADA or use the term reasonable accommodation. It doesn’t even have to be in writing, although the employer should ask for something in writing to document the request if it comes verbally. Be sure not to wait for something in writing, however, that statement alone triggers ADA protection and, while the ADAAA amendments require employers to be even more aware of disability and more proactive in recognizing it in their employees, this was generally enough to trigger ADA protections even before the ADAAA.
A family member, friend, health professional, rehabilitation counselor, or other representative also may request a reasonable accommodation on behalf of an individual with a disability. For example, a doctor's note indicating that an employee can work "with restrictions" is a request for a reasonable accommodation. Even though an employer does not have to initiate discussions about the need for a reasonable accommodation, if you believe that a medical condition is causing a performance or conduct problem, it is wise to ask the employee how you can help to solve the problem and you may want to ask whether s/he needs a reasonable accommodation. Please note that safety is of primary consideration. An employer has the responsibility to ensure the safety of employees and this includes seeing that a disability does not get in the way of that or any other employee’s safety is paramount!
Up next, having the conversation…
Sarah Conroy, SPHR, CEBS SHRM Maine State Government Affairs Director 207.713.8337 seconroy@gmail.com http://www.linkedin.com/in/sarahconroy http://tinyurl.com/MaineSHRMLegNews http://twitter.com/mainelyhr http://tinyurl.com/MECornerStoreHR
Alphabet Soup? Employing the Disabled (Part 3 of 5)
Posted by Sarah Conroy on 9/1/2011 12:00:00 PM
So, what’s reasonable and where do you get help determining this?
Before we talk about determining reasonable accommodation, let me introduce JAN for those of you who may be unfamiliar. JAN is the Job Accommodation Network – your tax dollars at work! JAN provides free, expert, and confidential guidance on workplace accommodations. JAN can be reached here. This is set up for all of us – employers, employees, the government, everybody! Using it will not only help you determine how to accommodate, but will put you on record in your good faith effort in accommodation. It will further guide you as you think about how to ensure jobs are available to the talented, regardless of disability. As an employer, you want the best, regardless of disability and you certainly don’t want to lose well trained talent to disability. I recommend you take a moment to visit here. This is the site for SOAR, the Searchable Online Accommodation Resource. This site is a good starting point to help you understand more about the disability and common accommodations for it in the workplace.
Besides JAN, you can also work with small business liaisons at the EEOC who will provide confidential assistance with ADA compliance in specific workplace situations. Maine is served from the Boston EEOC Office and the liaison is Robert Sanders at robert.sanders@eeoc.gov. For other state liaisons, please visit here. The EEOC website is here. For most employers, JAN is all they need.
Reasonable Accommodation Or Undue Hardship?
Reasonable accommodations are adjustments or modifications provided by an employer to enable people with disabilities to enjoy equal employment opportunities. Accommodations vary depending upon the needs of the individual applicant or employee. Not all people with disabilities (or even all people with the same disability) will require the same accommodation. For example:
An employee with diabetes may need breaks during the workday to eat or monitor blood sugar.
A blind applicant may need assistance with an employment application.
An employee with cancer may need leave to undergo treatments.
You must provide a reasonable accommodation if a person with a disability needs one in order to apply for a job, perform a job, or enjoy benefits equal to those you offer other employees. You do not have to provide any accommodation that would pose an undue hardship. Undue hardship means that providing the reasonable accommodation would result in significant difficulty or expense, based on your resources and the operation of your business. This is a slippery slope, so wisdom dictates considering a range of accommodations to make it work. Work with your employee to solve this puzzle to the benefit of all. Again, it will generally benefit the company’s bottom line in many ways, not only the retention or acquisition of talent, but the workplace pride it generates, not to mention the potential rewards in customer loyalty for a company exercising goodwill, compassion and smarts.
As mentioned briefly in Part 1 of this series, accommodations are generally not very expensive and pay for themselves in less employee turnover, loyalty, respect and more. According to the EEOC, about a fifth of accommodations cost nothing, as in ZERO. The average cost is less than $250 and technology keeps bringing this average down. Depending on the disability, the employee may provide his or her own assistive devices. As also mentioned in Part 1, there are tax credits available to offset expenses and there is sometimes vocational rehab funding available too.
Sarah Conroy, SPHR, CEBS SHRM Maine State Government Affairs Director 207.713.8337 seconroy@gmail.com http://www.linkedin.com/in/sarahconroy http://tinyurl.com/MaineSHRMLegNews http://twitter.com/mainelyhr http://tinyurl.com/MECornerStoreHR
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Information on this site is intended to provide guidance, not legal advice. Since exact language and definitions of key terms are critical to understanding the requirements of legislation, rules or laws, we encourage you to read each carefully. Articles, blogs, and information offered here may be reprinted with attribution given to “the Maine Corner Store, a program managed by the Maine State Chamber of Commerce.” Please address comments to Melanie Baillargeon, director of communications, by calling (207) 623-4568, ext. 20, or by emailing melanieb@mainechamber.org.
