?Staying compliant with the Americans with Disabilities Act (ADA) presents various challenges for employers, and these challenges have only increased in the last two years during the COVID-19 pandemic. There’s a lot of complexity in determining what’s a covered condition and what’s an essential job function.
Louis Richard Lessig, a lawyer with Brown & Connery in Westmont, N.J., discussed some illuminating ADA cases at the SHRM Annual Conference & Expo 2022 in New Orleans and virtually on June 14.
Two of the biggest problems are employees who want the HR professional to be a psychotherapist, and managers who don’t care or know the right way to communicate with employees who come in with ADA accommodation requests, Lessig noted.
“The very things you’re worried about are the very things the ADA was designed to help,” he added. “The challenge is, there [are] people in your organization who don’t listen or don’t take the time.”
Remember that employers must offer reasonable accommodations by engaging in an interactive process with the employee, but the employee also must participate in this process.
“We all know that sometimes employees just want what they want, even if you make them a legitimate offer that’s reasonable,” Lessig said. “Just because it [the accommodation] doesn’t work doesn’t mean you’ll get tagged, so you shouldn’t be afraid. If an employee is not going to meet you halfway, you don’t have to do squat. It’s true.”
Even if an employee qualifies for an accommodation under the ADA, the employee must be able to perform the essential functions of the job with or without the accommodation. Being able to drive to and from work doesn’t necessarily count as an essential job function.
“There’s a distinction between the essential functions of your job and your desire to get home after you’re no longer on the property,” Lessig quipped.
Access to the workplace is the employer’s responsibility, however.
Lessig recalled a case involving an employee who got caught in the worksite’s revolving door with a man, and it triggered her claustrophobia and post-traumatic stress disorder. She asked to be able to use the regular doors, even though the employer required all employees to use the revolving doors. The employer put an emergency alarm on the regular doors and locked them. She asked again to use the regular doors, and the employer said no. She filed suit, and the court ruled in her favor. An employer cannot block access to the workplace by denying a reasonable accommodation.
Foster Clear Communication
Many medical conditions are invisible, which makes the situation more challenging for managers and HR professionals. But clear communication can solve that problem.
“Write stuff down,” Lessig advised. “The ‘he said/she said’ is fine in any other case, but in an ADA case, the way we protect you is to write stuff down. Centralizing this stuff is a good thing. Why? Because your line managers have no clue.”
You might not know much about a medical condition that an employee discloses to you. Ask questions about the person’s symptoms, treatments and needs.
These cases “are very individualized,” Lessig said. “If you don’t know, you have to ask. This is not a guessing game. There’s no reason to not seek clarity.”
He recalled a case where an employee’s doctor recommended cannabidiol (CBD) cream for an arthritis-like condition. The employer had a policy stating employees can be called for a random drug test, and they must disclose in advance if they have a medical condition and a doctor’s order for a drug like marijuana. Otherwise, the presumption is the substance is being used illegally.
When this employee was asked to complete a drug test, it turned out positive, and the employer fired her. She sued, but the case was dismissed by the court. The employer had a right to expect her to fully disclose her use of CBD cream.
“This is an issue you’re all dealing with,” Lessig said. “We can’t make this stuff up, and our employees don’t get it. Some of it is we need to teach them.”
Another mistake employers make is to fire a worker even after they’ve cooperated with the employer’s policy.
Lessig described a case involving an HR generalist who got a biopsy to look for bone cancer. Because the biopsy was invasive and caused lingering pain, she was out of work for a couple of months.
Then the senior vice president of HR said she was beyond her maximum 12 weeks of leave under the Family and Medical Leave Act and fired her. The employer lost at the appellate court, which found that the employee had handled everything correctly and disclosed everything that was going on.
Getting fired like that “is not supposed to happen to people in HR,” Lessig noted.
Don’t Do Nothing
Another case revealed how doing nothing can cause legal trouble. This case involved three deaf individuals who applied to be cashiers at a supermarket. The store manager called them for interviews, and they said they needed an American Sign Language interpreter for the interviews. They received no response from the manager, Lessig said.
The U.S. Equal Employment Opportunity Commission (EEOC) sued on their behalf, and the employer had to pay $280,000 to settle the claim out of court last year.
In this situation, the employer was obligated to pay for an interpreter. Should an employer also install assistive technology that a deaf employee needs? Employers can always provide accomodations even when they are not legally required to.
Mental health comes up often in ADA claims. In one case, a firefighter retired because of anxiety and depression from the job. He applied to work as a driver for a transit authority. After he was on that job for a while, the union president made comments suggesting “the guy is crazy, and you should avoid him.”
The employee asked to be a bus refueler and washer, but the employer fired him.
He sued the employer, claiming it fired him because it perceived him to be mentally ill. The employer told the court it didn’t know about the employee’s mental health diagnoses. The court did not believe that the employer was unaware of the union president’s comments, and it ruled against the employer.
Lessig recalled another case involving mental health. A chief financial officer started having suicidal thoughts. He told his boss that he needed to take time off, and the boss told him to take whatever time he needed to get better. He was out of work for a few months and went to talk to his boss about coming back to work. The boss said, “I can’t trust you. You’re fired.” The EEOC sued the employer, and the employer had to pay $250,000 to settle the claim out of court.
HR professionals can’t always make managers do the right thing, but by educating managers before employees ask for accommodations, “we can sure fix it, sort of,” Lessig said.