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Employers' Obligations for Accommodating Employees with Disabilities | Unfiltered HR 017

Nearly all employers have some obligation to “accommodate” or modify otherwise usual aspects of performing in a role, to remove barriers to employment for individuals with disabilities, under the Americans with Disabilities Act and other state and federal laws and protections.

The scope of an employer’s obligation to accommodate is often not fully understood. In addition, the process of understanding where and when this is required, and how to go about meeting this obligation in the best way possible for both the business and the employee, can be tricky and fraught with opportunities for missteps. 

In this episode, Emily and Jen make this process easier by laying out what your obligations are and how to meet them, for the benefit of your staff and your business.


Watch the Full Episode:

📚 Helpful Resources:

CP_Pinecone Only_72ppi Employer's Guide to the Americans with Disabilities Act
CP_Pinecone Only_72ppi Complying with the Americans with Disabilities Act
AllyHR_Logo_500R Employers’ Obligations for Accommodation

 

Questions? Suggestions?
Want to host an episode of Unfiltered HR?

Email us: UnfilteredHR@completepayroll.com

 

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Thank you Phil & Penny and the staff at Poplar Hill Estate & Luminated Landscapes in East Aurora, NY for hosting us!

 

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Learn more about Ally HR Partners and schedule a FREE consultation with Emily Martin: allyhrpartners.com

 

CP_Avatar_900RS_Jen Strait_20210507


Meet Jen Strait |
completepayroll.com/jen-strait

 

Read the Full Transcript:

NOTE: The following transcript was auto-generated. There may be some minor spelling and grammatical errors. Luckily, it seems we are still safe from the machines. For now.

Emily Martin Hi everybody. Welcome back to another episode of Unfiltered HR, I'm Emily from Ally HR partners.
Jen Strait That makes me Jen Strait from Complete Payroll
Emily Martin And we are here again at Poplar Estates, where you can host a beautiful wedding or really other events. I got up to 200 people. This one you can host. So check it out online there'll be links around the show usually puts out there also is a sister company called illuminated landscapes and they can take care of all of your outside landscaping needs to paint your world with light.
Jen Strait I love that thing. Yeah, I love that. Saying from Phil is that in the business over 30 years and he is a expert at what he does. So check out the website, check out what he can do and how he can paint your world with light and make all your neighbors super jealous.
Emily Martin I love it. You thought interesting lighting was just for inside, but that turns out it's for outside too.
Jen Strait That that was popular deception.
Emily Martin All right. Today, we are going to kind of a good continuation off of the last subject. In the last video subject on leave, we're going to talk about an employer's obligation for accommodation. So again, this topic was touched on briefly in a previous episode about the increasing demand of employers to respond to employees medical needs or mental health needs.
Emily Martin But we're going to dove a little bit deeper into this, the topic specifically of accommodation and how to navigate that situation when it comes up for your business, because there are a lot of pitfalls that you can fall into.
Jen Strait We don't want you falling into any pitfalls. So let's have into the habit of it. And I would say that dove in on style.
Emily Martin Is more summer oriented.
Jen Strait Let's get started. Let's do this case here. Right now, there is a breeze coming. So this is what feels good.
Emily Martin All right. So we're going to start with a brief, I guess, educational history lesson and talk to you a little bit about the laws that protect people or employees that have basically disability conditions. So you've all heard probably of protected classes in New York State. There are several protected classes and list protected classes basically, but people with disabilities are protected, protected at both the federal and state level by the EEOC.
Emily Martin But also there's the Americans with Disabilities Act that requires you to accommodate someone with a disability. Then we have the Division of Human Rights in New York State that protects those people that have disabilities. So basically the moral of the story is the number of laws and agencies that are providing either leave or protections here is growing. And so you really need to be on your toes and understand that you have an obligation here and know what those are.
Emily Martin So, yeah, so.
Jen Strait I don't have anything to say.
Emily Martin All right, well, keep going then. So we want to like I guess let's talk about then what is a disability, right? Because it can seem kind of nuanced, John, but there are definitions of this that these agencies use. So basically it's a physical or mental condition that substantially limits a major life activity or bodily function. So bodily functions could be immune deficiencies, right?
Emily Martin Your ability to protect yourself with your immune system, different digestive deficiencies and things. So conditions that may disrupt your ability to digest normal way, like IBS or something like that, brain function, respiratory function, like asthma. So, you know, things that you would normally think of, of kind of chronic conditions that may affect someone's day to day life in major like life activities or things like breathing, walking, talking, you know, things that normal people would be able to do without much assistance or need for accommodation.
Emily Martin So some other things like you need to know about though disabilities can also be protected. If someone has a history of a condition. So maybe someone has had and recovered from cancer, but they still have protection as a result of that because you can't discriminate based on that of that history. Right. You can not hire someone because of that and you're afraid of it coming back.
Emily Martin Perceived disability is a big thing. So if you recognize something in someone and you perceive it as being disability related and treat them differently, that is also protected even though it's not maybe a diagnosable disability. So you want to be really careful on how you address and respond to these things, even if it's something you don't know about but think you might know about.
Jen Strait I think a good example or a good question about that is pregnancy. If you're pregnant, being interviewed, that can be very and I think it kind of goes both ways where you as the employer don't feel like it was a good fit, pregnant or not, and they feel like it's discrimination. And, you know, it's a very fine line of, again, is how it's perceived.
Jen Strait Sure. So, yeah. And I think that's what they consider like a disability.
Emily Martin Is being it. Yeah. It would be a medical condition. It affects, you know, your regular day to day life.
Jen Strait Oh, body function doesn't.
Emily Martin Yes, that's.
Jen Strait You know. Yes, it has.
Emily Martin So it's still that's protected under disability protections, but also disability pregnancy does have its own specific acts that we're talking about as well. But on that note, Joy them I'm glad you brought that up because another common thing that I think is entering the workplace more that is often covered by disability protection is people struggling with addiction issues.
Emily Martin So just a really quick tip on that. If an employee is struggling with addiction and is currently getting treatment and they're enrolled in some sort of program, whether it's outpatient or not, they are protected during that time. Under this law, if they are not enrolled and they're currently using, they are not protected. So that's a really good tip there.
Emily Martin Of course, you know, you should always contact a lawyer probably in situations you're considering taking action on stuff like that. But good good rule of thumb there. So so we know what disability is now. We know what some of the laws are that protect people. So what are your obligations as an employer if you encounter someone with a medical condition in the workplace and what protections exist?
Emily Martin And the first is to maybe offer some sort of leave, which we talked about that in the last episode. So make sure you check that out. There are different leaves, FMLA leave and disability leave in particular that protects an employee for their own medical condition and usually their disability qualifying conditions. So you may be required to provide a leave of absence to make sure that you understand that and go back and check out the episode.
Emily Martin Also, protections from discrimination, retaliation or harassment because of the disability, we're not going to go deep into that. We do mention it a bit in the previous episode, but just touch on that. But today we're talking about this requirement to accommodate or make it or make a modification to someone's job or their working conditions or their working environment as a result of their disability.
Emily Martin And you do always have an obligation as an employer to make them an accommodation or a modification as long as it doesn't result in an undue hardship on you as an employer, which is a pretty high bar to meet, which most people don't realize.
Jen Strait This thing is we're talking about, you know, conditions and things that, you know, they may need, like extra breaks or they have to leave at a certain time to go to the doctor every other day or something like that. You know, where where does that line come when it's creating a hardship on you? Because they're they're gone. Can they be flexible with their time?
Emily Martin Yeah, well, the standard is really doesn't involve or require a significant expense or difficulty on the part of the employer. And of course, significant is kind of a subjective term. But as you can imagine there, you know, the ruling is probably going to be on the side of the employee in that situation. So you're right, again, like a modified schedule that requires or allows for more breaks.
Emily Martin If someone has IBS or something like that. Right, that is a disability. They may need more breaks, but a lot of common ones that are more nuanced is like special lighting in their work area or screen protectors that reduce the light coming in or a modified chair to sit in and things like that. And these are all very simple things.
Emily Martin They cost very little money or hardship by the employer and you really should provide that. But the important thing, John, is to understand, one, that you do not need to reduce the requirement for the employee to perform the essential duties of the job in making the accommodations. So if the job requires them to have a certain output or get a certain job done or certain tasks done for the business and the accommodation should not compromise the requirement for the employee to need to do that.
Emily Martin So of course, changing someone's lighting in the area doesn't do that, right? It allows them to not maybe have the migraine so that they can focus to do the work. But you don't need to reduce those job requirements.
Jen Strait What are the legal obligations for having documentation of that? You need to have somebody comes in and says, I have chronic headaches or migraines. Do you legally do you can you require to have some sort of documentation from doctors or is this like what the employee says and things can change as you have it or like what? What are the rules for that?
Emily Martin So I'm glad that you mention that. So this process of going about requesting an accommodation, it should be a very, very formal process that an employee requests and you should contact h.r whoever wears the h.r. Hat in your organization to go about filling out formal paperwork because you do want to have the employee prove that they do have some condition or a condition that is disability qualifying and also have a doctor indicate what the actual restrictions or needs are so that you can actually meet those and not just kind of go off an arbitrary request from the employee because as you can imagine, not to be cynical, but that opens up a can of worms.
Emily Martin Give one employee a fancy chair at the end because they have a bad condition and now everybody wants a fancy, more comfortable chair. And if you didn't make the one person substantiate that, then you can't. Certainly make everyone else. So it is an interactive process that you should go through as defined by the ADA, the Americans with Disabilities Act, but doing it formally with h.R.
Emily Martin And documentation from a doctor is really, really important to protect yourself, you know.
Jen Strait And again, you always want to default to the benefit of the employee until it's resolved, right? They can't get an appointment with a doctor or a certain note in six weeks or something. Yeah. Try to do what you can for the employee because again you're the employee's the employee is guilty until proven innocent about anything. So you do kind of want to make those accommodations, but you do want to have a standard in your handbook.
Jen Strait Yeah. And you want to have this in your handbook if you have a disability or if you need special accommodations, here is the procedure to you. Fill out the form and formally request that because I think having that protection is exactly that. It's having that protection. So if there are any issues that come up and they claim that you weren't providing this well here, here's what you signed off on in the handbook when you were hired.
Jen Strait Here's what you had to do. And it was never brought to my attention because, again, when you have managers in there and they're the face of the company and you're not on the day to day interaction with the employees, you may not know. So if they casually tell a manager something you almost don't want that you, you want them to send it to the h.r.
Jen Strait And if you're if you're watching this video, 95% of these people are wearing your hat. Yeah. Yes.
Emily Martin Yeah. And then when you have that, that's one of our biggest takeaways here is it isn't a lot of video shine is train your managers on the Starwood train them to know when someone is alluding to having a medical condition or perhaps a disability. Once they've even made the manager aware of the situation. If they even mentioned like, you know what, I'm sorry, Emily.
Emily Martin Today I had a hard time getting out of bed because I've really been struggling with depression lately. You've now been potentially notified of a disability, and you may need to then have the obligation to accommodate that. Right? So that's when the manager needs to understand these are the triggers, these are the flags, and you should really escalate it so we can go about addressing it in a formal way that protects us.
Emily Martin And then if we need to make an accommodation, we understand what that is. We have documentation. This is a, you know, a bonafide basically condition. And then we will go about adjusting their schedule. But you don't want managers to inadvertently say, you know, okay, great. Well, we'll move your starting schedule back by 30 minutes and now you've accommodated without formally accommodating and.
Emily Martin Right. It really puts me in a bad situation.
Jen Strait That's a great point of having an informal discussion. The employees aren't even formally asking for any special accommodations, but they're saying, Hey, I couldn't get out of bed or something like that. You have to wear in your head or the managers have to know those words, those trigger words and those things to, you know, always overanalyze it and bring it to the owners or whoever is wearing that final h.r.
Jen Strait Hat attention so then they can take it from there. Yeah, because then they can reach out to the employee documented. If the employee says, no, I don't need any special accommodation, it's documented. And they can never go back and say I never was given that even opportunity. Yeah. Yep.
Emily Martin So really the takeaways here are, you know, know what it is you need to do and know what a disability is knowing your obligations are on yourself. With that knowledge, pay attention and be on alert. So whether it's you or your managers, you need to understand, you know, when someone does tell you something, what you may be obligated to do and then take the required stops to really investigate it and respond appropriately, and then yes, then respond appropriately.
Emily Martin So don't inadvertently accommodate without formally requiring paperwork. Don't discipline someone for something that could be protected under ADA without taking that investigative action. Certainly don't retaliate. It's been kind of talked about in the last Leave episode. You know, again, just be really thorough in your response. And then of course, as always, we take it back to the h.R.
Emily Martin Person, but mostly as needed to professional and either internally in your organization. If you have a really, you know, well-educated h.r. Person, high level h.r. Person. If not, that's what someone like our partner did just for you. Call Jen, too, and then she'll call me. And then I'll tell her and I'll tell you all.
Jen Strait We have a conversation, and then we'll meet. And then. Yeah, that's how we work as a team. I mean, there's so many things that are involved with weaves and payroll and time and the timekeeping system that our with h.r. Are. It is such a broad term and i hate seeing each other because i got it. It's it's such a broken.
Emily Martin Swear word.
Jen Strait Erased. And everyone's like, aaron cringes and you really it's such a broad term. But that's why we work so hand in hand. And it's a good time to even talk about some transitions that we have gone through of you know, someone like Emily has helped transition clients that we've worked on together from their current company to complete payroll.
Jen Strait And she's getting the intricacies of all of these things. We're talking about making sure they're in your handbook and then making sure it's set up on the payroll and time keeping, saying to have all of these things, you know, track tracked in. And that's why it intertwines. Well, to kind of have us both on your side. Absolutely.
Emily Martin Yeah. The systems can help you with automating a lot of the stuff and even yeah. When it comes to this disability stuff, tracking, you know, days off for limb usage and things like that as well.
Jen Strait So it's like, yeah.
Emily Martin So we hope this is helpful. Again, we'll follow up to this episode with some stuff, some written pieces on this as well. And you can always check out more content on my site on this or many topics, but certainly reach out if you have any questions. This is a pretty nuanced and gray area that is becoming a bigger issue for all clients and employees and employers.
Emily Martin So make sure you reach out with questions.
Jen Strait Yeah, sounds good. And if you would like to host us at our next video shoot, we will love to be there. They have been very gracious always. We have snacks off camera. You can see and yeah. And beverages here at Poplar Estates and landscapes newsroom but please email us and tell them our complete payroll dot com for content suggestions if you would like to host us comments anything questions about the topic that we just talked about.
Jen Strait We'd love to hear from you.
Emily Martin Yeah, we'll see you soon. Enjoy the rest of the summer. You're not till the end.
Jen Strait Yeah, well, we got to do, like, a beach or a boat or something.
Emily Martin Do you have, like.
Jen Strait A nice little view? That would be.
Emily Martin Amazing.
Jen Strait Have a view at your restaurant. Anything that is super summery, let us know. We would love to have have a it's only July 11th, so we need somewhere summer. Sure. Yeah, summer our in summer stuff. All right. Cheers. Cheers. And, hey, enjoy the weather season. Oh, bills, I'd say. Oh, it's.

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