ABC’s of ADA: An Overview of ADA

Laura Marzi: Hi, everyone. I'm Laura Marzi. Thanks for tuning into our latest Line on Leave Podcast from The Hartford. Today, we bring you the first in a series of three podcasts on the ADA, the Americans with Disabilities Act. We're going to focus today on a general overview of the law and for those listeners new to this, it's a great start. For others, it might be a refresher course.

 

So welcome to the ABCs of the ADA. Walking us through it are Alicia Heine and John Robinson, two people well-respected here at The Hartford for their deep knowledge of the ADA. Alicia is an ADA coach and a certified rehabilitation counselor and John is an Assistant Director of Absence Solution and he works closely with employers and brokers to help educate them on the ADA. So I'm going to get us rolling with a couple of questions. So, John, we'll start with you. At the very beginning, how long has this law been with us and why was it created?

 

John Robinson: So, Laura, actually ADA has been out there since 1990 and it was really originally created to help employees with disabilities to be able to fully function in society and that included being able to work. So when I'm out there and I'm talking about it, I say ADA predates even FMLA law. So it became effective even before Family Medical Leave, but unfortunately a lot of times employers really didn't pick up on that and there was a lot of questions. So there have been some iterations of ADA over the past 30 years.

 

Laura Marzi: Got it. And does the ADA apply to all size employers?

 

John Robinson: So ADA is very powerful. It is applying to all employers, private and public, with 15 or more employees. So a big difference from FMLA. FMLA only applies to 50 or more employees with a private employer and a 75-mile radius. So ADA is very, very wide scope. And unfortunately, a lot of employers don't realize how important it is from a responsibilities' perspective for them to be aware and make their employees aware of what it means to have ADA protection.

 

Laura Marzi: Got it. I guess what I'm wondering is if the ADA has been around for 30 years, how come most employers don't have a reasonable working knowledge of it?

 

John Robinson: When we're out there, Laura, and we know that most employer benefits departments have one or two people in them, and poor Lucy and Ethel are running around and they're trying to do all of this stuff off the side of their desk. They're trying to do FMLA off the side of their desk. They're chasing down beneficiary cards and doing open enrollment and looking at new medical carriers, and unfortunately ADA takes a back seat to all of that.

 

And with the Amendments Act that went into effect in 2009, it really is making the employer very responsible to be aware of what is going on in their organization. So when Laura shows up at HR and she's on crutches, Lucy and Ethel need to take some steps in order to really be in accordance with ADA and unfortunately they don't know that. And that's why when we go in and we talk to employers they say, "Well, we never have any ADA issues." It's because they don't understand what it means.

 

Laura Marzi: So, Alicia, question for you, what qualifies for a reasonable accommodation and what are some of the modifications an employer can make?

 

Alicia Heine: First, I think it's really important to mention how broad that definition of disability is under the ADA and it's really a physical or mental impairment that prevents participation in major life activities. So that when we think about an accommodation, we're really talking about a pretty broad spectrum of different types of conditions.

 

A reasonable accommodation is a change or an adjustment to the workplace or work schedule and it needs to be something that works for both the employer and the employee. The DMEC survey shows that the top three types of accommodations are additional leave time. That's often if an employee has had a surgery or perhaps some type of an injury where they need some additional time to recover. Adjusting work schedules is also important. That we see a lot if an individual has had a change to their medication and they perhaps need to have a different type of a work schedule until they adapt to that, or a situation where maybe the employee is actually attending physical therapy appointments and that would be something where they might need an adjusted work schedule for a period of time to be able to do that.

 

Making the workplace accessible, and some examples of that might be if an individual has a back condition and maybe he needs a sit-stand desk, or if they've got some type of visual impairment where they might need a larger screen to be able to work their job, or if they've got a situation where they need more frequent bathroom breaks- maybe working closer to a restroom may be something that is an accommodation for the employer.

 

John Robinson: And Alicia, this is John speaking again, I do want to point out that mental nervous component that you mentioned is really, really important. A lot of the activity that's happened around ADA since the Amendments Act in 2009 was really geared towards addressing and identifying mental nervous issues. Hence, that leave time as an accommodation and adjusting work schedules. When you have employees who don't have a physical limitation, but there's a mental, ADA is now saying, "Employers, you need to think out of the box. You need to come up with some additional things that are going to really be able to help employees with mental nervous claims. So make sure, employer, you're paying attention to that."

 

Laura Marzi: So when you're coming up with a reasonable accommodation, is that something that the employee and the employer can work together on?

 

Alicia Heine: Absolutely. That's really a critical piece of all this, Laura. The employee and the employer really do need to collaborate on all of this and that's part of the interactive process. And that's that discussion that the employee and the employer have to really determine what might be an accommodation for that individual. We're going to go into that more in the next podcast, the interactive process, but really it's a discussion between the employer and the employee to come up with a solution that works for both.

 

Laura Marzi: Got it. Okay. I'm going to turn it over to John. We talked about the EEOC's role in enforcing the ADA. I was wondering if we could just leave our listeners with some of the basic do's and don'ts that employers need to be mindful of.

 

John Robinson: Absolutely, Laura. The Equal Employment Opportunity Commission, the EEOC, is very active out there in trying to perfect ADA. There's a lot of reviews happening. There's a lot of fines being levied. So when you go in and you start talking to an employer and saying, "What are you doing about ADA?" And they say, "Well, we don't really have any issues." I say, "That's a red flag." We know that Alicia has just talked about what is a reasonable accommodation and the interactive process, two key pieces of that process. And the EEOC is going to really be looking, do you have an overall consistent process? Do you understand that ADA applies from day one? So, you need to treat all job candidates and employees equally under your ADA. So, that's day-one coverage. So when they come in and they start asking employees, "Have you heard of...," "Did you see...," "Has your employee told you..." and the employees are saying no, that's a red flag.

 

We are going to talk a lot in the next podcast about that interactive process on the importance of job descriptions and making sure that those essential duties are outlined and communicated to employees. And often times Lucy and Ethel, they haven't gotten around to updating them in about five years. So it's very, very challenging for an employer to really be able to take the correct action on ADA, as well as FMLA, without those updated job descriptions, essential duties clarified, what can and cannot be accommodated, and training it, getting out there in front of frontline leaders. They're very important in the process. Actually in front of all employees, "This is our process and this is how it works and we're keeping records." Request action outcome every single time.

 

Because again, when the EEOC comes knocking, they're going to say, "Where's your consistent process?" "Oh, we don't really have one." "Where are your records?" "Well we haven't had any." So, these are things that employers really need to be thinking about. I always say when I'm out there and talking, create, update and communicate that handbook, all of your ADA should be outlined in there. Get those job descriptions updated and hand them out to employees every single year. Make sure you're keeping track and records appropriately, avoiding those and inflexible leave policies. Because if you're linking what you're doing around job protection to PTO, sick, vacation time and not taking appropriate action around ADA as people are running out of time, you're going to get fined. Don't say it's too expensive, because when the EEOC comes in there looking they're not judging the accommodation request versus the employee's wages or what they're making while they're out on a benefit like Long-term disability. They're looking at how much the employer makes.

 

Well, what's too expensive for The Hartford? What's too expensive for Verizon? Very challenging to meet that. The burden of proof that this essential duty is essential is on the employer. Those job descriptions need to be updated. And the burden that shows that the individual is qualified under ADA is on the employee. And it really requires that a significant amount of medical information needs to be submitted. That onus is on the employee. But when you come and you look at it, the EEOC wants to see that every single accommodation request is handled on its own merits. So you're looking at the request, at the occupation, at the location, at the time of year that it's being asked for. All of those things need to be taken into consideration when an employer is trying to determine if a reasonable accommodation request is reasonable or poses an undue hardship.