by: Jonathan Driggs
The Americans with Disabilities Act (ADA) requires employers with 15 or more employees to provide “reasonable accommodations” to disabled employees. Disability claims filed with the EEOC have increased significantly over the past 5 years (nearly 45%), becoming a major legal liability risk for employers. The following are some important points to keep in mind when dealing with employee requests for reasonable accommodations.
- It doesn’t take much for an employee to qualify as disabled under the ADA. Recent changes to the ADA makes it quite easy for employees to qualify as disabled under the ADA and thus be eligible for an accommodation. Many conditions lasting more than a few months that have a fairly modest impact on the employee’s ability to perform basic life functions would qualify. When making disability determinations, the employee should be viewed without the benefit of any assistive devices or medical treatment (including medication)—the question becomes “how sick would the employee be without their medicine or assistive device?” Conditions in remission or which are episodic should be viewed as if they were in an active state. It is common for an employer to be dealing with a disabled employee under the ADA and not realize it. TIP: teach your managers that the threshold for disability status is quite low and that they should bring any potential disability issues to the company’s attention ASAP!
- While it is the employee’s obligation to request the accommodation… watch out for vague requests! The employee does not have to say any “magic words” or even reference the ADA. According to the EEOC, a request for an accommodation consists of: 1) a need for an adjustment or change at work, 2) due to a qualifying health condition. TIP: If an employee has disclosed a medical condition to the employer, it is permissible for the employer to respectfully ask if an accommodation is needed (especially if the employee appears to be seeking assistance in some way)—employers, however, should not question employees about possible medical problems if the employee has not disclosed the existence of a medical condition.
- Requests for accommodations should be taken very seriously! An employer’s duty to provide accommodation is significant. A delayed response to a request for accommodation is viewed by the EEOC as a failure to accommodate. Further, many ADA claims are created by managers failing to appropriately respond to the employee’s initial request. TIP: teach your managers to respond promptly and professionally when an employee makes a request for an accommodation. When a manager appears to be unwilling to help—or appears resentful about having to try and accommodate the employee—the potential for an ADA claim increases significantly.
- When ADA issues arise, get help immediately. The ADA is one of the most complicated laws facing employers and employee rights under the ADA are significant. When ADA issues arise, get help immediately from a qualified source in order to successfully navigate the ADA maze.
This article should not be construed as legal advice.
Jonathan K. Driggs is an employment law attorney with over 18 years of experience, including 3 years with the Utah Labor Commission. www.jdriggslaw.com
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