... Evolving and changing ADA regulations. along with Equal Employment Opportunity Commission (EEOC) final rules expanding the definition of "disability," may pose more challenges for employers trying to run compliant workplace accommodation programs.
In the absence of clear legal precedents, employers are forced to interpret regulations for themselves. A lack of legal precedents doesn’t mean employers are completely on their own.
When my group, the Disability Management Employer Coalition (DMEC), brought together an employer-only focus group last spring, the participating employers identified these ADA accommodation best practices:
- A centralized process is key. A centralized model at Ascension Health Alliance (AHA) has helped that organization look at each ADA accommodation request on a case-by-case basis. AHA has integrated workers’ compensation, short-term disability and Family and Medical Leave Act (FMLA) leave into a distinct unit with its own third party administrator (TPA). There is a service center to handle accommodation requests. The entire process keeps everyone who is involved informed about the status of the request.
- Establish clearly defined processes. Employers need a detailed reasonable accommodations and disability policy to guide the centralized process. All those involved in implementing it need to receive straightforward training on the policy, and it must be clearly communicated to employees. For example, in communications with employees on leave or with those needing accommodations, Sears states its expectations and identifies key process steps. The process includes providing user-friendly forms and looking broadly for open positions that may be able to accommodate an employee who cannot return to his or her previous position.
- Make it simple, easy and quick. To the degree possible, managers should be empowered to quickly implement reasonable accommodations. At Sears, managers have some autonomy. They still must turn to a centralized leave management team if there are any questions about the accommodation, if more guidance is necessary, or any time a manger thinks it reasonable to deny an accommodation.
- Watch your timing. Not only is it necessary to make reasonable accommodations to disabled employees, it is also critical that accommodations are made in a timely manner. This is where the "simple, easy and quick" fix may come in. If an employee asks for a stool and a manager waits too long to provide it, the employer may find itself in trouble with the EEOC. The EEOC looks not only at response time in acknowledging a request, but also at whether the employer has implemented a solution with reasonable speed.
- Document, document, document. Document, and then preserve and maintain that documentation. Keep records of all notices sent to employees, including employee benefits documentation, employer handbooks describing policies and practices regarding leaves, and any correspondence disputing leave designations or extensions. Also document all phone conversations and meetings. Like any regulatory compliance situation, an EEOC action revolves around documentation. A lack of it not only makes a particular case difficult to defend; it also raises a red flag as to an organization’s overall commitment to compliance.
As studies by the American Medical Association and other groups have documented, disability rates are rising and will continue to rise in the years ahead. The country has made a social and legal commitment to reasonably accommodating disabled employees.
Insurers, brokers, employers and everyone involved in disability management have an interest in fulfilling this commitment in an effective and efficient manner.
