Ensuring ADA Compliance at Your Workplace by Trent Cotney
As any employer will tell you, complying with all Americans with Disabilities Act (ADA) directives can be challenging, and the COVID-19 pandemic has made it even more difficult. However, despite any obstacles you face, it is critical that you follow ADA guidelines and accommodate your employees’ needs as best you can.
It is likely that your employees each have different personalities, medical concerns, and physical conditions, and those factors can impact their ability to do their jobs. For example, you may have an employee who uses a wheelchair, so you will need to ensure she has access to your building (perhaps with a ramp or elevator) and the wheelchair fits in her workspace. But other concerns can be more difficult to identify. For instance, you may employ a veteran with post-traumatic stress disorder (PTSD). Unless he tells you, you may not know that loud noises can trigger him. But if you are aware of this issue, you can give him a quiet workspace or allow him to work from home if a renovation is taking place onsite.
However, keep in mind that some employees may not readily accept the accommodation you offer. For instance, you may have a worker struggling with long COVID—lingering health issues that have continued after having the virus. To accommodate his ongoing low energy, you might suggest that he work in the office each morning and then work from home each afternoon. But he may respond with a request to work from home exclusively. If his job duties require him to be onsite at least part-time, you might be unable to accommodate this request. What matters is that you try to meet him halfway, and you can prove that his essential job functions require his presence on site.
When your employees have accommodations requests, your HR team must be ready to listen and strive to understand those requests. Too often, busy HR professionals can miss critical details if they are not focused on the issues at hand. Make sure they have the time and the support to discuss relevant matters with your workers and find solutions. Encourage them to ask good questions and be direct in their answers. You will often not know that your employees have ADA needs unless you ask.
But also ensure that your HR professionals do not fall into the role of psychotherapist for your employees. Those services are best directed to mental health care professionals. So be sure those resources are available.
The Need for Documentation
When an employee voices the need for accommodation, make sure that your HR team documents everything. This means taking detailed notes during meetings, retaining pertinent emails, and keeping records of follow-up meetings and agreements. You have no proof of an accommodation request and its resolution if the details are not written down somewhere.
For example, you might have a worker who uses CBD for a medical condition. And you may have a policy of random drug testing. If your worker informs you of his need for CBD, it is critical that you document that information. If he does not notify you and fails a drug test, you are within your rights to take disciplinary action. However, if that information is on file, you can ensure he is successfully performing his duties in another way.
In addition, be sure that your company adheres to the agreed-upon accommodation. For example, if a worker has taken a leave of absence to handle a medical issue, allow her the allotted time to return to work. If you expect her to resume work too early or penalize her in any way, you may face a lawsuit.
As you work to comply with ADA regulations, do all that you can to accommodate your employees. These efforts will protect their rights and keep your company strong. But also remember that if they fail to keep up their end of the bargain, you have rights as well. If you have offered reasonable accommodations and an employee is still not successful at work, you can and should seek to rectify the situation.
If you have questions about ADA compliance, do not hesitate to consult legal counsel. An experienced employment attorney can review your issues and help you explore options that will benefit you and your employees.
The information contained in this article is for general educational information only. This information does not constitute legal advice, is not intended to constitute legal advice, nor should it be relied upon as legal advice for your specific factual pattern or situation.
Trent Cotney is National Construction Practice Group Leader at the law firm of Adams and Reese LLP. For more information on this subject, please contact the author at [email protected]