The Americans with Disabilities Act (ADA) was enacted in 1990 to protect the rights of individuals with disabilities, and in 2009 the ADA Amendments Act (ADAAA) went into effect, expanding the protections afforded to disabled individuals.
The ADA (encompassing ADA/ADAAA) requires employers to provide reasonable accommodations whenever an individual with a disability is unable (due to their disability) to perform essential job functions of a position. A reasonable accommodation can be any adjustment to the work environment or the manner in which job tasks are completed to enable the individual with a qualified disability to perform the essential job functions. There are a wide variety of reasonable accommodations which could include changes to the work environment like additional breaks, modifying work schedules, or availability to sit during a shift. Acquiring a piece of equipment or modifying a work station may also be reasonable accommodation under the ADA. One accommodation that employers may not anticipate under the ADA is providing an employee with a leave of absence.
Although most employers are subject to the ADA, many employers may find it difficult to navigate the ADA requirements and the necessary steps to provide reasonable accommodations. The ADA is complex and very far reaching since many temporary disabilities also qualify under the ADA.
As a construction industry employer, understanding obligations under the law and establishing clear internal protocols is critical to successful handling of a potential ADA scenario. If employers don’t handle potential ADA scenarios with clear procedures and a caring approach, it can have much larger ramifications. If an employee feels “wronged” through the ADA experience it may prompt the employee to file a lawsuit; there were more than 5,000 ADA lawsuits filed across the country in 2015. Due to legal fees these lawsuits can be costly (regardless of the outcome) and lawsuits can arise with or without termination of the employee.
Going through the ADA interactive process is not required by law but can be an advantageous tool for a construction industry employer to show a strong effort to support their employees and comply with the ADA. The interactive process enables the employer to have an open line of communication with the employee throughout the life of an accommodation request. Identifying and outlining the interactive process will create consistency and provide support to the employee, manager, HR representative and any other applicable stakeholder during a sensitive and often complex scenario.
Important Steps for Interactive Process
1. Recognize an Accommodation Request. Most of the time employees won’t realize they are requesting an accommodation under the ADA, or they may not recognize the need for an accommodation. If an employee does make a request for an accommodation, a construction industry employer will rarely hear the employee mention ADA or use the phrase “reasonable accommodation.” Since it can be difficult to identify an ADA request, it is critical that managers, HR,and other applicable stakeholders have training to recognize a possible accommodation request. During the first conversation with an employee about a possible accommodation, it’s important to be compassionate and provide clear next steps for the request. This first interaction with the employee will set the stage for the overall experience.
2. Gather Information and Explore Accommodation Options. Once the initial interactive process conversation has taken place and the employee has been provided with next steps for the request, it’s important to gather information. This would be the opportunity to request information from the employee’s medical provider regarding any applicable restrictions or limitations and possible accommodation options. Once the appropriate information is obtained, the employer should engage in open communication with the employee about possible accommodations. During this dialogue, an employer should ask if the employee has any suggestions of possible accommodations. Including the employee throughout the interactive process and listening to the employee’s preference will have a positive impact.
3. Choose an Accommodation. There may be several available accommodation options to satisfy an accommodation request. If there are several accommodation options that support the employee to perform essential job functions, the employer has the right to choose an accommodation. Employers that engage with the employee on possible accommodation options and consider employee preference strengthen a positive employee experience.
4. Implement the Accommodation. Make sure appropriate steps to implement the accommodation are taken as soon as possible. For example, this may include installing a new piece of equipment or changing the work schedule to provide the employee with additional breaks. An employer should ensure that the accommodation implemented meets the needs of the employee but also meets the needs of the business.
5. Monitor the Accommodation. It’s important to continue the interactive process after an accommodation is implemented to verify the accommodation is effective. Scheduling check-ins with the employee will keep open dialogue and give the employee the ability to express if the accommodation is effective. From a business operations standpoint, scheduling check-ins with the manager will ensure that the accommodation is supporting the employee to perform essential job functions. Regular check-ins can be used as a time to confirm any physical equipment for an accommodation is properly maintained. They also create an opening to explore if an alternative accommodation is needed.
Through information sharing and utilization of an established interactive process, an ADA scenario can be positive for all stakeholders involved. Construction industry employers should not only rely on communication and clear protocols but engage vendor partners and additional resources for support with ADA. For example, some vendors offer specialized ADA services to support employers through the accommodation request process. Consultants are able to provide support in training and building a strong interactive process tailored to specific employer needs promoting compliance. Law firms are also great resource in regards to promoting compliance. While navigating the ADA can be challenging for construction industry employers, if the ADA interactive process is engaged, an open line of communication exists, and appropriate accommodations are put in place, the employer and employee will gain a positive outcome from the experience.
