No Penalty For Liberal Policy
The ADA does not penalize employers for making an accommodation that is easy to provide without ascertaining whether the person has an ADA disability, Levin emphasized at a Jan. 16 audio conference.
For example, an employer is not bootstrapping a person into the law´s protection by providing a chair to let someone who claims to have arthritis sit on the job, she commented. A sprained ankle typically is not a disability and it does not magically become one if an accommodation is provided, she added.
Levin urged employers to consider granting accommodations when they are needed if they are not too expensive or disruptive, regardless of whether the person has a disability. A liberal accommodations policy has several benefits, she noted, including:
"You do not have to put everyone who comes forward with a request for an accommodation through the Spanish Inquisition," remarked Peter Petesch, a partner with the Washington, D.C., office of the management law firm of Ford & Harrison.
"You´re better off not knowing" if someone has a disability because of the law´s confidentiality provisions, Petesch added. The ADA requires all medical information to be kept strictly confidential in files separate from general personnel records with access permitted to persons in only a few positions on a need-to-know basis.
Providing an accommodation to someone who may not have an ADA disability "is not necessarily an admission the person has a disability," Petesch agreed. If it is easy to make the adjustment, it could be a win/win situation for everyone because it could keep the worker performing productively and prevent the employer from having to recruit a replacement, he explained.
If a response to an accommodation request "feels like the Spanish Inquisition, then you´ve done it wrong," added Charles Goldman, a Washington, D.C., disability rights attorney and contributor to the ADA Compliance Guide. He advised employers to familiarize themselves with basic rules of disability etiquette such as not touching someone´s wheelchair without permission. If common courtesy is ignored, "you will get socked and get socked hard," Goldman warned.
Employers should establish a centralized repository of records showing what accommodations have been granted companywide, he recommended. This will help HR managers "draw from the institution´s history."
Goldman also urged employers to train their workers about what to do if an accommodation is requested, including who in HR should be informed about the request, so that "everyone knows what the drill is."
Talk Can Lead To Cheap Solution
Accommodations should be provided after engaging in the interactive process with the employee, Levin emphasized. This discussion can show good-faith efforts to comply with the law and shield the employer from punitive damages if the employee later brings an ADA claim.
The exchange also can prevent employers from spending money on a change that is not needed, Levin added. She recalled one employer that assumed a mail clerk who used a wheelchair needed a mail counter to be removed and replaced. After talking with the employee, the employer learned the worker did not have a problem with the counter. Instead, she was having difficulty seeing which label was identifying which mail slot.
The employer installed an angled mirror to improve her line of sight, which worked and was much cheaper than putting in a new counter. "This is my favorite example" of why it is crucial to engage in the interactive process with employees to identify a reasonable accommodation, Levin stated.
´Multiple Moving Targets´
Petesch warned employers that the law has "multiple moving targets" when providing accommodations to persons who do have ADA disabilities. "This is not one-stop shopping," he quipped, explaining that if an accommodation is tried but does not work, the employer has an obligation to go back to the table and try to identify another solution.
In addition, an individual´s needs may change over time, and employers should be ready to react, Petesch advised. An employee´s position could change like a roller coaster, instead of being a downward spiral, he noted.
But essential functions never have to be sacrificed when accommodating someone and accommodations that result in an undue hardship are not required.
Responding To Costlier Requests
Even under a liberal accommodation policy, an employer typically would request documentation of a disability if a requested modification would be expensive and the person´s disability is not obvious, Levin remarked.
Appropriate medical documentation would not include a person´s entire history, she cautioned. Instead, it should be limited to what the employer needs to determine whether the person has a covered disability and provide a reasonable accommodation.
"Documentation is not necessarily from a doctor. It may be from psychologists, nurses, licensed clinical social workers and therapists," Levin stated. "Often, they have a much better understanding of the person´s limitations than a doctor."
Employers can respond to accommodation requests differently, requiring medical documentation for expensive requests but not for cheaper ones, when "the different treatment is for a good reason," Levin said.
Timing Of Request
The timing of someone´s accommodation request may make a difference in how HR responds as well, Petesch added. If a top-notch performer asks for an accommodation, an employer is likely to react less cynically than it would to an employee who is on the rocks.
Suppose a worker is about to be terminated and then asks for a reasonable accommodation. "The person may have needed it all along, but was reluctant to come forward. In this instance, the timing may smell funny," so the employer may want corroboration that the person has an ADA disability, he stated.
Employers "are walking fine lines" when responding to accommodation requests, Levin cautioned. "Operate on a rule of reason and know why you are doing what you do, so that you could defend it. Use the common sense rule, and if you do, you should be okay."
This article appeared in the March 2003 issue of Thompson Publishing Group´s ADA Compliance Guide Monthly Bulletinin,Thompson Libraries.