Compliance Considerations: ADA Best Practices

Podcast: Line on Leave In the final episode in the Line on Leave podcast’s ADA series, The Hartford’s ADA Coach, Alicia Heine, and Assistant Director of Absence Solutions, John Robinson, discuss the best practices and compliance considerations for ADA in the workplace.
 
 
 
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Transcript

Laura Marzi: Hi everyone. I'm Laura Marzi. Thank you for tuning into our latest Line on Leave Podcast from The Hartford. Welcome to our third and final installment of our series on the ADA, which is the Americans with Disabilities Act.
 
Laura Marzi: So far we've discussed the basic of the federal law and employer and employee responsibilities. We're going to wrap up the series today with a discussion around the compliance complexities. As always, we have our ADA subject matter experts from The Hartford with us, who have been with us for the entire series and they'll share best practices for staying on top of things. I'm delighted that we can talk again with The Hartford's ADA Coach, Alicia Henie, and John Robinson, who is our Assistant Director of Absence Solutions and he also offers our continuing education courses on the ADA.
 
So, John, we're going to start with you today. Why do you think some employers struggle with the law? What's the real perspective on this?
 
John Robinson: Well, Laura, I really do feel that a lot of times employers struggle because they don't understand the law itself and what really is required and also because they're trying to do it themselves. There certainly is a lot of opportunities for employers to really put together in their handbooks, and remember, I know I've said another podcast create, update, communicate that handbook, outline what you want to do with ADA. But if you don't have that good understanding of the law, the requirements for both the employer and the employee, it really makes it challenging to put those types of guidelines and outline that consistent process.
 
We've also said, "Lucy and Ethel, you're trying to have them run these programs off the side of their desks." So they're out doing all of these other things from an HR benefits perspective. And also it's really important to remember ADA protects AHC and non-AHC. So people who are out for Workers' Compensation can also be asking for ADA accommodation requests and frequently they're coming back into benefits. So you don't have the experience or expertise. You're looking at a significant amount of medical information. You don't have any resources, doctors, nurses to assist you in that review and there was that increased focus on mental health, as I have indicated before, too.
 
So being able to put all of those pieces together, as well as train your entire front-end leaders, pretty much to say, "How can we help you?". Gone are the days the employer can say, "Hey, you need to be 100%. We can't take you back." The law is very supportive of you have an employee, they want to come back regardless of a union contract, regardless of what other things the employer might have said in the past, you must honor that accommodation request and begin that interactive process and working with the employee, and oftentimes employers just do not know that.
 
Laura Marzi: Got it. Okay. I have a second question for you. It's about the Family and Medical Leave Act, which is known as FMLA. I know that's another complex law that employers have to administer. So what I'm wondering is there a link at all between the ADA and FMLA?
 
John Robinson: Laura, absolutely. It is important for all employers to remember FMLA is out there and it is running. It is the granddaddy of them all and absence programs are built on what FMLA is offering as protection. So employers really need to understand, am I covered? Do I need to provide FMLA? Am I covered? Do I need to provide ADA? How are these things going to be working in lockstep with each other? But FMLA is very well-defined; specific time periods, specific forms, follow-up requirements with an end result of job protection, which is return to work same or related position. ADA is very vague. So there aren't specific forms and timelines. Everybody becomes eligible for ADA on day one, even during the interview process where for FMLA you have to work for a year. So being able to understand the differences, but understanding that they're going to be working in lockstep with each other as much as possible is important.
 
And also, an employee can ask for an ADA accommodation at any time. A lot of employers make the mistake and say, "Hey, they can't ask until the end of FMLA." That's not true. And it may be a situation where the employer is working through the interactive process. Maybe the request is not reasonable and they have to say, "Unfortunately, we can't do this." But FMLA is still out there and it's running and it's protecting that employee. So understanding how all of these programs work together is really, really important.
 
Laura Marzi: Okay. Let's bring Alicia into the conversation and talk about one of the most common reasons people might need accommodation. I'm wondering, is pregnancy ever considered a disability under the ADA?
 
Alicia Henie: While a normal pregnancy is not covered under the ADA, if there is a complication that's surrounding the pregnancy, that could be considered under the ADA. As far as the accommodations that an individual's requesting, it's always valuable to look at those accommodation requests, because even if it is not covered under the ADA, there are so many other types of actions or situations where an individual is pregnant. And I know John is going to elaborate on those.
 
John Robinson: Absolutely. Remember when we talked about ADA and Alicia and I were talking about that requirement of the employer to recognize the employee may be having a difficult time. Well, what ADA is saying is you don't need to be tapping every pregnant woman on the shoulder and saying, "Do you need an accommodation?" The reason being; there's a whole host of other coverages out there that are protecting pregnant women, including FMLA, including Pregnancy Discrimination Act, including all of the state and local legislation that is out there right now. So it is protecting the pregnant mom. It is providing her job protection. ADA really wasn't designed to protect a normal pregnancy, but should a pregnant woman come to you and say, "Hey, I'm having hypertension. I'm having preeclampsia. I'm having diabetes, and I need an accommodation, with that in mind the employer does need to take action, start the interactive process.
 
Remember the mantra is, "How can I help you to stay at work and return to work," and that will include a pregnant woman who is having some sort of difficulty related to her pregnancy.
 
Laura Marzi: That makes a lot of sense. Thank you for that example. Okay. I was looking for a couple others too. Maybe we can even think about some success stories. John and Alicia, if employers have so much to consider when trying to do the right thing for their employees, I was wondering if you could each walk us through an example of how we help employers accommodate for the workforce successfully.
 
John Robinson: Absolutely, Laura, and I love success stories and how they really demonstrate an employer who's doing the right things can have the best result. So let's take a large perfume manufacturer that we work with and they have many small retail outlets throughout the entire country. They normally employ only three or four people in these outlets. They have a small outlet. It's in Hawaii. There's only four people who work at the store. And they had an employee come. She had been out on FMLA for the 12 weeks. She had exhausted all her time, both from Hawaii, as well as FMLA. She came into the store and she said, "I'm really not ready to come back to work, and I don't know when I'm going to be able to."
 
Well, the perfume manufacturer had done a great job training frontline leaders, updating job descriptions, really talking to everybody about what ADA was. So the manager said, "We're going to take all of your information, but that indefinite amount of time in this location in Hawaii, we only have four people who work here. You're one of them and it's the holidays. It's going to be very, very difficult for us to allow you to take an indefinite amount of time off." So they ended up having a really good discussion working with the woman's therapist, and they actually were able to come up with a part-time schedule where she was working at night. And then over a period of eight weeks, she was able to come back to work full-time full-duty, which should always be the goal.
 
So like ADA says we have the interactive process. The initial request from the employee was not reasonable based on the occupation and the location and the time of the year. But if at first you don't succeed, try, try again, and they were able to get the employee back to work full-time, full-duty over eight weeks. But would the answer have been different from the employer if they were talking about their corporate office in New York City where they employ 5,000 people? Absolutely. It probably wouldn't have been an undue hardship to allow that person six or eight weeks of additional time, leave time as an accommodation.
 
So you have that process. You're following it. You're handling each employee on their own individual merit based on the request, where it is being made, for how long and what that employee's occupation is.
 
So Alicia-
 
Alicia Henie: Yes, I agree with you. It is definitely a win-win situation when we can come up with an accommodation that works for both the employer and the employee. We had a scenario where we had an employer who had company sponsored training programs that the employees were required to attend and participate in. There was an employee who was a very good employee of the company, but really struggled during these training programs. He was not able to participate in the training and was really falling behind. The employee identified to the employer that he was struggling and the employer had seen it too, but he asked for an accommodation. The accommodation that was requested was looking at how he was able to participate in those training programs.
 
The employer wasn't really sure what types of accommodations were out there. The employee did self-disclose that he had a learning disability. And as a part of that dialogue and that interactive process, one of the questions came up was how is it that you best learn, and how is it you best assimilate information so that we may be able to help you with these training programs? The employee wasn't really sure. We pulled in some resources and looked at some availability through the Job Accommodation Network. And it was determined that the employee truly would be able to participate in the training programs if he was able to have printed materials to review, go over the training prior to attending the programs so he could really assimilate that information so when he got to the training program he was able to actively participate.
 
So the employer provided that as a reasonable accommodation. It was quite simple for them to be able to give him that information so he could review prior to coming to the training and the employee made the commitment to do that. And then when he was able to attend the training programs and had been able to process that information, he was actively able to participate in those training programs.
 
I think this was a really good example of a true win-win where a company had a very valuable employee who was doing well on other aspects of the job, but was struggling with those programs. And through that interactive dialogue and providing that accommodation, they were able to successfully keep that employee working.
 
Laura Marzi: Those are awesome examples. Thank you for the success stories. Alicia, this is a lot for somebody who's listening to remember, and I'm wondering if you could just sum things up for us on a compliance level. What are some of the best practices and resources that employers need to keep top of mind?
 
Alicia Henie: While the ADA does not require that an employer have job descriptions, it really is very valuable and a best practice to have those. And documenting the job descriptions is really critical. That's something that you really want to be looking at on an annual basis to make sure your job descriptions are updated. And part of that goes to the fact that technology changes, resources change, so it's important to really look at those regularly because while it's not a requirement of the ADA to have a job description, that may be something that the EEOC is looking for if they come knocking on your door, so it's really important to have those.
 
Training for managers and supervisors and Human Resource professionals is also very critical. As we've discussed, this is a very complex law and there are a lot of facets to it, so making sure that your Human Resource professionals and managers have some understanding of the ADA, the interactive process, some of the basic components of the ADA is really important. Keeping records; keeping records of accommodation requests, actions, and outcomes, that's also something that's a really critical piece that again, the EEOC will be looking for.
 
The burden of providing a function that is essential is that of the employer, so making sure that you have that type of documentation is again critical. And that showing that an individual is qualified under the ADA is on the employee. That's another piece of all of this. A person has to be qualified to be covered under the ADA, so they do need to have the credentials for the job, and they need to be able to perform the essential functions either with or without an accommodation.
 
You also need to handle each accommodation request on a case by case basis. Although there may be some similarities in the request as we've tried to illustrate through our examples, there are also very different pieces to all of this. The difference in the type of a learning disability a person has, as John highlighted, the scenario of even the location and the number of employees at a location can impact what kinds of accommodations are available.
 
Also recognizing that there are resources out there that can really help. Again, I'll stress, the Job Accommodation Network is a great one for employers to be able to tap into.
 
Laura Marzi: That's terrific. Thank you, Alicia. We definitely covered a lot of ground on the ADA in this series. I do want to thank Alicia and John for giving our listeners a better understanding of the law. It's been a fantastic discussion. Thank you to all of our listeners, and hopefully you got the advantage of listening to all three podcasts to really get an in-depth overview of the Americans with Disabilities Act.
 
As always, if you like what you hear, please subscribe to our podcast and share it with your colleagues. You can always visit us at https://www.thehartford.com/pfml for more information and resources to help you manage absence in the workplace. Until next time, be well and stay safe everyone. Thank you.
 
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This informational material is subject to change as The Hartford continues to receive guidance from states and municipalities. It shall not be considered legal advice. The Hartford assumes no responsibility for legal compliance with respect to an employer’s business practices, and the views and recommendations contained herein shall not constitute The Hartford’s undertaking on a company’s behalf, or for the benefit of others, to determine or warrant that an employer’s business operations are in compliance with any law, rule, or regulation. Employers seeking resolution of specific legal or business issues, questions, or concerns regarding this topic should consult their own attorney or business advisors; and employees should continue to consult their employers’ Human Resources or other employment benefits department for guidance on the application of any law, rule, or regulation.
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