Dear Rita in HR:
One of our employees recently disclosed a medical condition that limits his ability to perform some of his duties. His manager wanted to fire him because he can no longer perform his job, but I don’t think we can do that. I handle accounting and HR for our nonprofit and don’t know a lot about employment law, but I do know that employees with disabilities have legal rights. What should our nonprofit do to comply with the law?
You’re absolutely correct, employees with disabilities have a legal right to reasonable accommodation of those disabilities and are increasingly filing legal challenges if their rights are violated. Charges alleging disability discrimination under the Americans with Disabilities Act (ADA) filed with the Equal Employment Opportunity Commission have increased 73 percent in the past 10 years and now represent over one third of charges filed. (15,575 charges in 2006 increased to 26,968 charges in 2016.) There are many reasons for this increase, including awareness of one’s legal rights, an aging workforce, lack of short-term disability insurance and the complexity of compliance with subjective legal standards under the ADA. This litigation trend shows that employees are increasingly willing to challenge employers’ decisions related to accommodation of disabilities. What can employers do to mitigate this increasing litigation risk? Document, Document, Document!
If you’ve ever been assigned as the HR point person to work with defense counsel in an employment discrimination charge, you know the first task is to review documents. Litigation can go on for months or years after the events being challenged, after memories have faded and verbal conversations are colored by perspective. The documentation that exists is critical in proving whether an employer has met its legal duties. Under the ADA, these duties are subjective — an employer has the burden to prove that it engaged in an “interactive process” and offered “reasonable accommodations” to an employee with a “disability” unless to do so poses an “undue hardship” or a “direct threat to health and safety.” Without documentation, this burden can be insurmountable for employers. (Ed. Note: For more information about complying with the ADA go to the EEOC website or check out Blue Avocado’s archive of Ask Rita articles.)
On a practical level, discussing the need for an accommodation can be emotional and complex for employees. If the communication on this sensitive subject is documented, it increases the likelihood that an employee understands his or her rights and the supervisor understands the necessary employer obligations. Communication on this confidential subject is best handled by a designated contact in the HR department or a senior executive in a small nonprofit, because of the nature of the information and the complexity of ADA compliance.
So how does an employer document ADA compliance? Let’s go through each element of the ADA analysis and identify helpful documentation.
1. The Interactive Process
To comply with the ADA, employers have to work together with employees with disabilities to determine if there is anything that can be done to mitigate the impact a medical limitation has on the employee’s ability to be successful at work. This dialogue is called the interactive process. It is an ongoing obligation and is renewed any time circumstances change, or when a former accommodation is no longer working either as self-reported by the employee or when the supervisor notices that the employee is struggling to meet performance standards. The essential question for employers to ask is: “What can I/we do to help you be successful at work?”
All verbal and written communications related to the interactive process should be kept in a note log. Additionally, the employee should be given a form to request accommodation and a cover letter that indicates the employer’s process for engaging in the interactive process.
2. Disability? Work limitations?
The 2008 ADA Amendments Act (ADAAA) substantially broadened the definition of disability to any physical or mental impairment that substantially limits (or in California, just “limits”) the ability of an individual to perform a major life activity or operation of a bodily function. Whether or not an employee has a disability is a medical opinion, not something the employer or employee decides. So the letter initiating the interactive process with the employee should include a medical certification form.
Remember: An employee’s personnel file should contain no documents that mention a medical condition. All medical information should be kept in a separate confidential medical file, and should not be discussed with coworkers or other staff outside the interactive process.
3. Evaluating Potential Accommodations
An accommodation is any change in the work environment or in the way things are customarily done that enables an individual with a disability to enjoy equal employment opportunities. Employers should document the factors it considers when evaluating an employee’s accommodation request, focusing on essential functions, work limitations and legitimate business concerns. Remember: An employer is not required to reduce productivity standards or remove essential job functions as an accommodation.
4. Granting or Denying the Accommodation
The employer should confirm the granting or denial of an accommodation in writing. An informal accommodation can be confirmed with an email. But if the employer has gone through a formal interactive process, a letter is best. A grant of the accommodation should describe the history of the interactive process, the accommodation provided and any time frame.
Employers are required to accommodate disabilities unless to do so will constitute an “undue hardship.” An employer thus can deny an accommodation request on that basis, but still needs to be willing to explore other possible accommodations. Determining that an accommodation is an undue hardship is a subjective determination, so your documentation should reflect your analysis of the undue hardship factors established by the EEOC regulations and the letter denying the accommodation should include the suggestion of any alternative accommodations or a willingness to discuss any other ideas the employee has.
Additionally, an employer does not have to accommodate an employee if to do so would pose a direct threat, meaning providing the accommodation would pose a significant risk of substantial harm to the employee or endanger others such as coworkers or clients. This determination must be based on medical opinion, not employer’s opinion nor the possibility of future harm. So if you deny on direct threat, you will need to include a medical certification supporting that determination with the denial letter.
ADA compliance is complex. Utilizing form letters and checklists will not only help your nonprofit comply with the law but also provide a defense in the event an employee challenges your nonprofit’s efforts to provide all accommodations that are reasonable.
Nonprofits with Directors & Officers insurance coverage through the Nonprofits Insurance Alliance Group have access to free, unlimited consultations with an Employment Risk Manager. If your nonprofit is insured by the Group, you can contact us for forms, sample letters or checklists discussed in this article. If you’d like to get a quote for insurance through the Nonprofits Insurance Alliance Group, you may do so here.
This article does not provide legal representation or legal advice. Nothing provided in this column should be used as a substitute for advice or legal counsel.
Ellen Aldridge, J.D. is an Employment Risk Manager for the Nonprofits Insurance Alliance Group. Ellen has practiced labor and employment law for 29 years in both the public and private sectors – representing and advising management in wrongful termination, wage and hour, discrimination and sexual harassment cases. With Nonprofits Insurance Alliance Group, Ellen advises nonprofits with D&O insurance about employment issues – before they are sued – to help keep them out of court.