What You Need to Know About Disability Accommodation The Executive's Roadmap to Best-in-Class HR Strategy

Transcription

1 What You Need to Know About Disability Accommodation The Executive's Roadmap to Best-in-Class HR Strategy 2014 TriNet Group, Inc. All rights reserved. Reproduction or distribution in whole or part without express written permission is prohibited. This proprietary communication has been prepared for educational and information purposes only. The content does not provide legal advice or legal opinions on any specific matters. Transmission of this information is not intended to create, and receipt does not constitute, an attorney-client relationship between TriNet and you. TriNet is not an insurance company, but rather is the single-employer sponsor of all of its health benefit plans. Nothing contained herein constitutes an offer to sell, buy, or procure insurance.

2 Welcome! Jacqueline Breslin Director, Human Capital Services, TriNet Jackie Breslin TriNet Based in San Leandro, CA 20 years experience in Human Resources Leads a team dedicated to compliance, workplace investigations and challenging employee relations issues Experience implementing and managing HR programs to include policy development, performance management, compensation, recruitment and retention, learning and development, coaching and M&A activity 2 The Executive's Roadmap to Best-in-Class HR Strategy 2014 TriNet Group, Inc. All rights reserved.

3 Agenda What Businesses are Covered Key Aspects and Definitions When Obligations Begin How to Respond to a Request How to Prepare in Advance Resources Summary Q&A 3 The Executive's Roadmap to Best-in-Class HR Strategy 2014 TriNet Group, Inc. All rights reserved.

4 Meet Our Subject Matter Expert Cara Panebianco TriNet Cara Panebianco Senior Employee Relations Consultant, TriNet Based in San Leandro, CA Over 9 years of human resources and employment law experience Subject matter expert in areas of employment investigations, compliance and employee relations Received her JD from Golden Gate University 4 The Executive's Roadmap to Best-in-Class HR Strategy 2014 TriNet Group, Inc. All rights reserved.

6 Federal Law The Rehabilitation Act of 1973 Covers federal contractors Prohibits discrimination, harassment and retaliation Requires affirmative action Americans with Disabilities Act (1990) and the ADA Amendments Act of 2008 Covers private employers with 15 or more employees Prohibits discrimination, harassment and retaliation in the workplace Requires reasonable accommodation of qualified disabled individuals 6 The Executive's Roadmap to Best-in-Class HR Strategy 2014 TriNet Group, Inc. All rights reserved.

7 State and Municipal Laws 36 States and the District of Columbia have similar laws that apply to smaller employers 14 of those states have laws that apply to employers of 1 or more Some states consider how many employees in the state, but many look at employees in any location Some local municipalities also have laws preventing disability discrimination Some laws are more favorable to employees than the ADA Broader idea of disability More limits on what information employers can request Stricter idea of undue hardship 7 The Executive's Roadmap to Best-in-Class HR Strategy 2014 TriNet Group, Inc. All rights reserved.

9 Prohibition Against Discrimination Under the ADA, employers cannot discriminate against individuals with a disability in Hiring, Advancement, Compensation, Training, Discipline, Termination, and All other terms, conditions and privileges of employment. 9 The Executive's Roadmap to Best-in-Class HR Strategy 2014 TriNet Group, Inc. All rights reserved.

10 Additional Obligations Employers must provide reasonable accommodation to qualified applicants and employees with disabilities Under the ADA, employers cannot retaliate against individuals for Requesting an accommodation Questioning decisions related to accommodation Opposing or complaining about a violation of the ADA Cannot disclose medical information about the employee Even if the employee discusses it casually 10 The Executive's Roadmap to Best-in-Class HR Strategy 2014 TriNet Group, Inc. All rights reserved.

11 Employees Protected Applicants and Employees are protected under the ADA if they Have a physical or mental impairment that substantially limits one of more major life activities; Have a record of having such an impairment; or Are regarded as having such an impairment. AND Are qualified to perform the essential functions of the job, with or without reasonable accommodation. 11 The Executive's Roadmap to Best-in-Class HR Strategy 2014 TriNet Group, Inc. All rights reserved.

12 Impairments A physical impairment is any physiological disorder or condition, cosmetic disfigurement, or anatomical loss affecting one or more body systems, such as neurological, musculoskeletal, special sense organs, respiratory (including speech organs), cardiovascular, reproductive, digestive, genitourinary, immune, circulatory, hemic, lymphatic, skin and endocrine. A mental impairment is any mental or psychological disorder, such as intellectual disability (formerly termed mental retardation), organic brain syndrome, emotional or mental illness and specific learning disabilities. 12 The Executive's Roadmap to Best-in-Class HR Strategy 2014 TriNet Group, Inc. All rights reserved.

13 Major Life Activity Anything that is significant to living life, such as Working Eating Sleeping Moving Thinking Communicating Any major bodily functions Any bodily systems Operation of any individual organ 13 The Executive's Roadmap to Best-in-Class HR Strategy 2014 TriNet Group, Inc. All rights reserved.

14 Substantially Limits Broadly interpreted as comparing the individual in question s limitations against those of most people. Cannot consider mitigating measures Regulations encourage coverage to the maximum extent permitted under the law Individualized assessment 14 The Executive's Roadmap to Best-in-Class HR Strategy 2014 TriNet Group, Inc. All rights reserved.

15 True or False? Because pregnancy is temporary, the ADA does not apply to pregnant employees or applicants. 15 The Executive's Roadmap to Best-in-Class HR Strategy 2014 TriNet Group, Inc. All rights reserved.

16 Answer False Pregnancy-related conditions that substantially limit a major life activity may qualify as a disability under the ADA 16 The Executive's Roadmap to Best-in-Class HR Strategy 2014 TriNet Group, Inc. All rights reserved.

17 Pregnancy What about Pregnancy? Although pregnancy alone is not considered a disability under the ADA, pregnancy-related conditions that substantially limit a major life activity may qualify as a disability under the ADA. Additionally, many states have additional explicit reasonable accommodation requirements for pregnancy-related conditions. Best practice is to begin with the assumption that pregnancyrelated restrictions are covered by the ADA. 17 The Executive's Roadmap to Best-in-Class HR Strategy 2014 TriNet Group, Inc. All rights reserved.

18 Qualified Individual & Essential Functions A qualified individual is someone who has the knowledge, skills and ability required for the job and with or without reasonable accommodation, can perform the essential functions of the employment position that such individual holds or desires. Essential functions are the parts of the position that are central the role, not those that are marginal Written job descriptions are key evidence of what are the essential functions of a vacant job Written job descriptions that are accurate and up-to-date are very valuable in determining essential functions 18 The Executive's Roadmap to Best-in-Class HR Strategy 2014 TriNet Group, Inc. All rights reserved.

19 Employer s Duty to Reasonably Accommodate Affirmative duty imposed by the ADA Find reasonable accommodations through a good-faith interactive process between the employer and the employee A reasonable accommodation is any change in the work environment (or in the way things are usually done) to help a person with a disability apply for a job, perform the duties of a job, or enjoy the benefits and privileges of employment Not reasonable if it is an undue hardship for the employer 19 The Executive's Roadmap to Best-in-Class HR Strategy 2014 TriNet Group, Inc. All rights reserved.

20 Unreasonable Accommodation Employers are not required to provide accommodations that are unreasonable An accommodation unreasonable if it is not effective, such as Lowering production standards Removing essential job functions Excusing violation of safety or conduct rules Results in significant difficulty or expense Creates an undue hardship 20 The Executive's Roadmap to Best-in-Class HR Strategy 2014 TriNet Group, Inc. All rights reserved.

21 True or False An accommodation that will negatively impact morale can be an undue hardship under the ADA. 21 The Executive's Roadmap to Best-in-Class HR Strategy 2014 TriNet Group, Inc. All rights reserved.

22 Answer False Morale is not a factor that the EEOC considers acceptable for determining undue hardship; however, if there are quantifiable impacts on operations that create the lowered morale, those impacts could be an undue hardship. 22 The Executive's Roadmap to Best-in-Class HR Strategy 2014 TriNet Group, Inc. All rights reserved.

23 Undue Hardship Employers are not required to provide accommodations that create undue hardship Undue hardship occurs when there is significant difficulty or expense in granting an accommodation based on Nature and cost of accommodation Overall structure and function of the workforce Overall resources of company Impact of accommodation on operations Important to articulate undue hardship in quantifiable terms 23 The Executive's Roadmap to Best-in-Class HR Strategy 2014 TriNet Group, Inc. All rights reserved.

25 During the Hiring Process In addition to avoiding discrimination in hiring, employers must reasonably accommodate qualified applicants Carefully structure hiring procedures Post job ads on platforms that are accessible to those using adaptive software Carefully consider when and why testing is used, and what tests are used Plan applicant testing to be tied to essential functions and available in a format that is adaptable 25 The Executive's Roadmap to Best-in-Class HR Strategy 2014 TriNet Group, Inc. All rights reserved.

26 Question Which of the following may trigger an employer s duty to reasonably accommodate an individual? a. A written request from an employee for an extended lunch break on Mondays so she can receive treatment for a disability b. A voic left for a manager from an employee s spouse stating the employee needs a three week leave of absence due to a medical emergency c. The company hires a new marketing manager who uses a wheelchair, the company s office is in a historic building only some of which is wheelchair-accessible d. An employee casually mentions during a group conversation he cannot hear out of his left ear e. All of the above 26 The Executive's Roadmap to Best-in-Class HR Strategy 2014 TriNet Group, Inc. All rights reserved.

28 When a Request is Made Any request for a change in policy, practice, procedure, or standard because of a medical condition Any request for other assistance because of a medical condition Usually made to front-line managers No requirements or formulas for what it should look like Written or verbal Formal or informal No particular words needed May come from someone other than the employee 28 The Executive's Roadmap to Best-in-Class HR Strategy 2014 TriNet Group, Inc. All rights reserved.

29 When there is Knowledge an Accommodation is Needed When the disability is obvious, there s a responsibility to provide accommodation even if not requested Not an obligation to know what exact accommodation is needed, but obligation to engage with the employee on the subject Examples of sufficient knowledge Request for an extension of an LOA due to medical condition Comments about a medical condition when counseled on failure to follow policy or meet expectations Other comments about a medical condition or limitation Limitations that are obvious to the casual observer 29 The Executive's Roadmap to Best-in-Class HR Strategy 2014 TriNet Group, Inc. All rights reserved.

30 Obvious Disabilities when Hiring Cannot refuse to consider applicants who request a reasonable accommodation for the application process If the employee discloses a disability or has an obvious disability Can ask questions about the ability to perform the essential functions Can ask for a description or demonstration of how the applicant will perform the functions 30 The Executive's Roadmap to Best-in-Class HR Strategy 2014 TriNet Group, Inc. All rights reserved.

32 Receiving the Request Do Acknowledge what the employee is asking for Ask for clarification Ask for documentation when necessary Consider interim measures or accommodations Keep medical information confidential Keep communication open Recap verbal conversations in writing to the employee Focus on the limitations Don t Make assumptions Immediately grant or deny a request Require specific formats for requests or supporting documentation Navigate the process on your own not make a decision before evaluating the situation Focus on the diagnosis 32 The Executive's Roadmap to Best-in-Class HR Strategy 2014 TriNet Group, Inc. All rights reserved.

33 True or False The employee s requested accommodation is not the only accommodation an employer should consider. 33 The Executive's Roadmap to Best-in-Class HR Strategy 2014 TriNet Group, Inc. All rights reserved.

34 Answer True While the specific accommodation an employee requests is one of the accommodations to consider, if there are other effective and reasonable accommodations those should also be examined. 34 The Executive's Roadmap to Best-in-Class HR Strategy 2014 TriNet Group, Inc. All rights reserved.

36 Analyzing the Accommodation Possibilities Focus on understanding what the employee s restrictions and limitations are as to the essential functions Consider the accommodations the employee is requesting Brainstorm all possibilities to bridge the limitations of the disability Review all of the possibilities to determine if they are effective Review all of the effective possibilities to determine if they are reasonable Document all your good work while it is happening Select an accommodation that is effective and reasonable 36 The Executive's Roadmap to Best-in-Class HR Strategy 2014 TriNet Group, Inc. All rights reserved.

37 Communicating the Decision Meet with the employee to communicate what accommodation will be implemented Discuss how the accommodation will be implemented Review the timeline for implementing the accommodation with the employee Discuss any interim measure and how long they will continue Review ways the employee can raise any further concerns Document the meeting Document the implementation of the accommodation Prepare supervisors on how to respond to questions from other employees 37 The Executive's Roadmap to Best-in-Class HR Strategy 2014 TriNet Group, Inc. All rights reserved.

38 True or False Once the accommodation is implemented, the employer s duties of accommodation are fulfilled. 38 The Executive's Roadmap to Best-in-Class HR Strategy 2014 TriNet Group, Inc. All rights reserved.

39 Answer False The duty to accommodate is ongoing even after the first request for accommodation is addressed. 39 The Executive's Roadmap to Best-in-Class HR Strategy 2014 TriNet Group, Inc. All rights reserved.

40 Ongoing Accommodation Make sure the accommodation continues to be effective by checking in with the employee and the supervisor Sometimes accommodations that are effective in theory are not in practice and it is back to the drawing board While it is unreasonable to lower performance or quality standards, the first time an attempt at accommodation fails does not grant an automatic pass on continuing to engage in the process 40 The Executive's Roadmap to Best-in-Class HR Strategy 2014 TriNet Group, Inc. All rights reserved.

41 Managing Performance It is permissible to manage an employee with a disability who also has performance issues If the performance issues are unrelated to the disability, then the employee should be managed the same as any other If there is no prior notice or knowledge of disability or need for accommodation, then can proceed with discipline decisions If there is prior notice or knowledge and no accommodation was offered, or the accommodation granted was not effective, then should continue the interactive process Must also manage the conduct of coworkers and supervisors to prevent harassment, discrimination and retaliation Document, document, document 41 The Executive's Roadmap to Best-in-Class HR Strategy 2014 TriNet Group, Inc. All rights reserved.

43 Job Descriptions Accurate and current job descriptions are one of the most useful tools in navigating the accommodation process Job descriptions need to be clear as to what are essential (i.e. the most important) functions of the job and what are the additional responsibilities Job descriptions are dynamic, just like the positions At a minimum, job descriptions should be updated prior to hiring for an open position 43 The Executive's Roadmap to Best-in-Class HR Strategy 2014 TriNet Group, Inc. All rights reserved.

44 Educate Supervisors The actions of an uninformed supervisor can result in negative consequences for the company The supervisors need to know Your commitment to following ADA requirements Best practices related to interviewing applicants What to do if an employee mentions a health condition Process and responsibilities if an employee requests an accommodation Appropriate initial responses to employees That they cannot handle these types of issues on their own 44 The Executive's Roadmap to Best-in-Class HR Strategy 2014 TriNet Group, Inc. All rights reserved.

45 Manage Performance for All Employees Having a robust performance management culture and system Shows that expectations are consistent for all employees Provides better framework for distinguishing disability-relatedlimitations from other performance issues Provides better documentation of when disciplinary decisions were made Increases productivity across the organization 45 The Executive's Roadmap to Best-in-Class HR Strategy 2014 TriNet Group, Inc. All rights reserved.

46 Additional Resources TriNet Please reach out to your TriNet HR contact at the earliest indication of an issue The Job Accommodation Network (JAN) Ideas on accommodations searchable by limitation or disability Free consulting services on accommodation ideas and options Employer Assistance and Resource Network (EARN) Resources for recruiting, hiring, retaining and advancing individuals with disabilities 46 The Executive's Roadmap to Best-in-Class HR Strategy 2014 TriNet Group, Inc. All rights reserved.

47 Summary Many companies with less than 15 employees will have accommodation obligations Employer obligations begin during the hiring process Most of the burden is on the employer Accurate and timely documentation is essential Ongoing communication with the individual is the key to success When in doubt, call your TriNet HR Contact 47 The Executive's Roadmap to Best-in-Class HR Strategy 2014 TriNet Group, Inc. All rights reserved.