Does your company have a spare $9.8 million sitting around in the bank?
That’s how much American Airlines had to pay when the Equal Employment Opportunity Commission cited it for Americans with Disabilities Act violations. And it’s just one of several multimillion-dollar settlements employers have had to pay in recent years because they fell short of ADA requirements for accommodating employees with disabilities.
This kind of costly error also brings negative hits on reputation, employee morale, recruiting and maybe even your stock price.
Here are the top 5 mistakes companies make when it comes to ADA compliance — and how your company can avoid them:
#1 Not recognizing and properly documenting requests for accommodations
If an employee is having trouble meeting performance expectations, you may have to probe for information to find out why, advises Tamika Newson, assistant vice president & legal counsel at Unum. “Ask what barriers the employee is facing and what could be done to overcome them,” Newson says. “If the employee needs assistance because of physical, mental or other limitations, let the person responsible for ADA management know right away.”
#2 Failing to communicate thoroughly and document the interactive process
The ADA rep should contact the employee to verify the request and discuss how the requested accommodation will help the employee perform the job. This step also includes circling back to the manager about the agreed-upon solution, ensuring the employee gets training if needed for an adaptive device, and following up with the employee and manager to see if the accommodation is successful. “Of course, all these conversations should be documented,” Newson adds.
#3 Lack of current job descriptions
The first question you’ll be asked to determine if your company made appropriate accommodations is “What are the employee’s job duties?” Be sure job descriptions are current and specific. “If it’s not clear what the duties of each job are, it’s hard to know whether or not an employee can perform the job and what accommodations would help,” Newson says.
#4 Failing to document all potential reasonable accommodation considerations
This is similar to mistake #2 but focused more on what is or isn’t a reasonable accommodation — and why. For example, if an accommodation is denied, the documentation should describe how the request is impractical and why the cost of providing the request is an undue hardship.
#5 Not reviewing and documenting the effectiveness of selected accommodations
Even after your company provides a reasonable accommodation to an employee, the ADA still requires you to regularly review it to make sure it’s working. “The manager should meet with the employee regularly, document the discussions, and report them to the ADA rep,” Newson says.
Actions to take now
Now that you know what to avoid, what’s your next step? Newson advises focusing on these 4 areas:
- Review your job descriptions — Functional job descriptions give you more leverage if you need to argue that an employee can’t perform essential functions.
- Review your policies — Review or develop policies and procedures to ensure the interactive process and individual assessments take place and are documented.
- Establish or refresh policies — Be sure you have protocols in place for handling confidential information and for training managers.
- Consider a disability absence management team — Have a person or team in place to act as point in interacting with employees who request accommodations.