By Mia Mancini
Jul. 17, 2017
After spending 75 days in the hospital, 12 of which were in a coma, and then several months after that in a wheelchair, Meredith Morgan faced another daunting challenge — finding a job. “I know how hard it can be to find a job for just about anyone, but it’s extremely hard to find one with a disability,” said Morgan.
Years of physical therapy due to a traumatic brain injury forced Morgan to end her job as a brand ambassador. “Employers see a gap in my résumé where I was piecing my life together,” Morgan said, adding the right accommodations allow her to perform as well as any employee.
Failure to engage in the reasonable accommodation process is an employer’s biggest legal challenge, according to Rachael Stafford, director of the Rocky Mountain ADA Center. The Americans with Disabilities Act requires employers to provide reasonable accommodations to qualified employees with disabilities, unless doing so would pose an undue hardship.
According to Stafford, there has been little change in the total unemployment numbers of people with disabilities since the ADA’s enactment in 1990. The original intent behind the ADA was to improve employment statistics and employment opportunities for people with disabilities. Stafford suggests working with the employee on what accommodations work best rather than deciphering it alone. “A strict no pets policy in a workplace should not automatically bar a qualified individual from bringing his or her service animal,” said Stafford.
Most companies struggle with determining undue hardship, according to Shawn Toor, an attorney at Williams Kastner in Seattle. “The nature and cost of the accommodation needed, the financial resources of the employer and the structure of the employer’s operation constitute undue hardship,” said Toor.
He said the burden is higher on the employer to show they participated in the interactive process. A big mistake Toor sees employers make is inaccurately listing essential functions of jobs they hire for. “It’s important those essential functions are related to the business needs.”
Toor sees employers violate the ADA when they require employees to submit medical records unrelated to the requirements of the job. “You must prove the requested information is related to the employee’s ability to perform the core of the job,” said Toor. “Employers have to be prepared to justify why a requested accommodation was provided in certain circumstances, but not others,” said Teresa Jakubowski, a legal expert specializing in the ADA.
The ADA regulations don’t always adequately address the vast array of workplace issues. Jakubowski said requests for leave are another challenge workplaces face. The analysis surrounding leave issues can become complex. According to the ADA, there is no clearly stated limit on the maximum amount of leave an individual may take. Employers need to be careful with respect to maximum caps on unpaid leave, according to Jakubowski.
Terri Rhodes, CEO of Disability Management Employer Coalition, provides focused education for absence management professionals. When it comes to HR professionals, she suggests they obtain the information necessary to determine if a particular reasonable accommodation is required.
She urges employers to have a strategy in place, such as early return to work programs for both occupational and non-occupational injury or illness, to minimize disability. This benefits the employee in a quicker recovery and the employer in reducing costs associated with an employee’s absence.
To limit potential work-related disabilities, Rhodes recommends early intervention programs like wellness and ergonomic strategies. New technology can be successfully implemented into design conscious offices, she said.
CMD Ltd., a British manufacturer that creates design solutions for the workplace, surveyed 515 workers with disabilities to determine what disability-friendly solutions offices need. Non-adjustable desks were cited as the biggest problem at 29 percent. CMD created height adjustable workstations and accessible plug sockets to help workers with restricted movement. “Innovative technology enables desks to be usable by everyone instead of belonging to one person. This creates a more productive way of working,” said Bruce Cantrill, head of marketing and new business at CMD.
Added Rhodes, “Many workplaces have structured environments with little thought as to how the employee fits.”
Rhodes said accommodating disabilities is common sense. She recommends that HR identify the stakeholders in their organizations who provide disability prevention services, such as safety, loss prevention, risk management, employee health — and those who assist in bringing employees back to work from a leave — benefits, absence, workers’ compensation — while monitoring ADA compliance.
Mark Groves, director of risk management at Employer Flexible, agrees that HR should keep in contact with the employee to determine possible restrictions.
“This absolutely should be a coordinated effort between risk and HR,” said Groves. Stakeholders should be involved in minimizing work loss and preventing disability. Rhodes said HR should work with risk management to develop integration touchpoints that assist employees who are going out on a leave (FMLA, short-term disability and workers’ compensation). Rhodes said this creates a centralized area where employees can get information about their leave.
Sharon Rosenblatt, director of communications at Accessibility Partners, said that after being diagnosed with post-traumatic stress disorder, her company allowed her to dictate her own hours and telework. “The best solution to my workplace problems due to my disability is the one that costs the least: a flexible attitude,” said Rosenblatt. Her ideal workplace is one that empowers the worker without taking the workplace for a hit. She recommends workplaces dictate work parameters and deadlines, but have flexibility with working hours and location. “It’s proven to improve the mental health of workers and increase retention, including me.”
Mia Mancini was an intern for Workforce. Comment below or email firstname.lastname@example.org.
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