What is ADA?

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The Americans with Disabilities Act (ADA), enacted in 1990 and amended in 2008, prohibits private employers with 15 or more employees, state and local governments, employment agencies, and labor unions from discriminating against qualified individuals with disabilities in employment activities. Such activities include hiring, termination, training, promotion, compensation, and other terms and conditions of employment.
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What You Don't Know

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Ignorance may be bliss, but it won’t keep you out of court. Here are a few scenarios in which what you don’t know could truly hurt your organization.

Scenario 1: Till adverse employment action do us part

Here’s what you know. Joe and Mary are husband and wife. They both work for your organization. Joe’s performance and attendance is poor. Despite multiple meetings, warnings and disciplinary actions, he consistently doesn’t show up and even when he does, he doesn’t get much accomplished. As a result, you plan to let Joe go later this week.

Here’s what you don’t know. For the last three months, Mary’s new supervisor has been harassing her. The conditions have gotten so bad that she just filed a sex discrimination charge with the EEOC.

Here’s how this could hurt you. If you fire Joe, you may also get sued for retaliation – and lose. In early 2011, the U.S. Supreme Court ruled that an employer unlawfully retaliated against an employee after his fiancée filed a sex discrimination charge with the EEOC and it then fired him three weeks later. As a result of this ruling, employers must be mindful of the relationships between employees when taking any adverse employment actions that could be construed as retaliatory in nature, even if the potential third-party “person aggrieved” wasn’t engaged in any protected activity.

Scenario 2: It’s in the details

Here’s what you know. Emily works for your organization. She recently applied for a new position in the organization that would give her a promotion and an increase in pay. While considering Emily for the promotion, you note that she has displayed a consistent pattern of clerical errors and a lack of attention to detail in her work. You tell Emily that you believe she may lack the concentration or mental capacity to handle the additional responsibilities of the new position, and as a result, you deny Emily the promotion.

Here’s what you don’t know. Emily was recently diagnosed with a learning disability.

Here’s how this could hurt you. Based on the final rules for the Americans with Disabilities Amendments Act of 2008, taking an adverse employment action because an employee is “regarded as” having a disability is a no-no, and the definition of “disability” has been greatly expanded. In this scenario, Emily could file a claim with the EEOC that you regarded her as having a mental impairment or learning disability, and as a result, discriminated against her by denying her a promotion.

Scenario 3: Unemployed need-not apply

Here’s what you know. You have a job opening for a production manager at a facility in New Jersey. You’ve had a lot of turnover at this position, which your management team at your headquarters in Canton, Ohio, believes is the result of a lack of qualified job candidates. As a result, two weeks ago they ordered that you change your online job ad to include “must be currently employed” as a requirement of the position. You made the change at the beginning of the month, and have already started interviewing candidates this week.

Here’s what you don’t know. This week an unemployed former production manager filed a discrimination charge against your company with the Commissioner of Labor and Workforce Development in New Jersey.

Here’s how this could hurt you. As of June 1, 2011, employers in New Jersey are prohibited from knowingly or purposefully publishing a job posting in print or on the Internet that states, among other things, that current employment is a job requirement. In this case, your organization could be fined $1,000 for its first violation – up to $10,000 for a third (or subsequent) violation.

New Jersey is the first state to enact a law protecting unemployed workers from employment discrimination. New York has adopted the same legislation.

6 Ways to Manage New ADA & Legal Changes

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The final 2011 ADA regulations had important implications for HR and managers when managing employees’ medical conditions and impairments. Here are six ways we gave to strategically manage this issue in particular and other legal changes that may affect your business in the future.

Meet with your HR and management team. When any new employment law or regulation is implemented, as a strategic measure, it’s important for your HR team and organization to determine how this law will impact your organizational objectives. Meet with your management and HR teams to discuss how the law or regulation will influence your HR operations, affect your ability to attract and retain key talent, and prompt new liabilities or risks that could affect your bottom line or operations. From there, you’ll need to determine what tactical issues need to be addressed, such as implementing training to your management staff, revising and communicating policies, adjusting HR processes, and incorporating new risk management processes.

Revise policies. In the case of the final regulations pertaining to ADA (as well as other laws and regulations), it’s important that you review your policies and employee handbook to ensure that language is adjusted to meet the changing definition of disability and is consistent with the language within the regulation. Remember, the definition of disability has become much broader, so your policies should reflect this change.

Review and adjust accommodation process. No longer is focusing on the question of whether an illness or condition is a disability the focus of the ADA law, as many conditions will now fall under this definition. Rather, the changes to ADA emphasize developing accommodations for employees with impairment. Key questions you should ask are how is your accommodation process administered? Is an HR representative in charge of this process or are line managers? With the new regulations, it’s recommended that HR:

  • Lead and manage the accommodation process consistently throughout the organization versus managers. This ensures that the process is run the same throughout the organization, reducing potential liabilities.
  • Approach the ADA process like FMLA and use standard forms and processes instead of un-standardized doctors’ notes and evaluations. Consider your approaches during the pre-employment process with applicants as well as when current employees develop an illness or condition while they are employed.
  • Create a standard internal form for employees to use which provides a checklist of possible conditions or ability to write the condition or impairment and summarizes alternative accommodations that apply to the condition, or a guide for a discussion of these accommodations. The form may also include a doctor’s signature if necessary versus using doctor’s notes.

Review job descriptions. Ensure that job descriptions specify the essential job functions of each job – and also be sure that these essential functions are actually essential. The courts have been critical of how essential functions are defined. Also, be cautious of defining too many tasks as essential. A good rule of thumb is using a job analysis to rate or rank how important and critical certain tasks are to a job and how frequently they are conducted, and to account for job incumbent and supervisory perspectives.

Train and communicate. When a policy or process is revised, be sure to communicate the changes as soon as possible to managers who are in charge of implementing and executing them. With ADA, front-line managers will likely be the first to know about an employee’s illness or condition and need to understand how to handle requests for accommodations such as:

  • Job modifications
  • Schedule changes
  • Environmental issues (temperature, work setting, stress, exertion, etc.)
  • Motor or cognitive impairments
  • Mental issues (depression, anxiety, etc.)

Managers need to know how to respond, act, and when to refer to HR – and how negative or inappropriate reactions to these requests or even knowledge of a medical condition can cause liability or risk to the organization. They also need to be trained on how to effectively manage employees with mental or physical impairments in terms of scheduling, direction, support, and even modification of interpersonal interactions.

Last but not least, stay ahead of the curve. In HR, we unfortunately tend to react to a problem, a new law or regulation, or a new fad (i.e. what every other employer is doing) versus staying ahead of trends and upcoming legal agendas and issues that will affect our business. This often results in poorly executed tactics, lawsuits, and other issues that could have been avoided had we been more strategic. By being proactive and staying on top of changes emerging in the market, we can help our business manage its risk, legal, and HR issues more effectively, and become a more strategic partner within our management team.

Please note that by providing you with research information that may be contained in this article, ERC is not providing a qualified legal opinion. As such, research information that ERC provides to its members should not be relied upon or considered a substitute for legal advice. The information that we provide is for general employer use and not necessarily for individual application. 

Additional Resources

ERC provides a number of resources to help you stay updated on important legal and HR trends and issues, as well as training for your managers on employment law and employee relations.

ERC Training
To visit our ERC Training Program and Courses page: click here.

Supervisor & Management Training
We offer several courses for supervisors and managers on topics like employment law, workplace bullying, and general employee relations topics like communication, interpersonal skills, and more. To learn more, click here.

HR Project Support
From employee handbook and policy updates to job description revisions, we offer assistance with HR projects to help your organization stay compliant. For more information, please contact consulting@yourerc.com.