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.
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