With the rising tide of disability harassment claims, the prevalence of mental health issues in the workplace and reports of substantial EEOC settlements on behalf of disabled workers, employers may want to scrutinize their employment policies and practices and seek compliance assistance to avoid potential claims under the Americans with Disabilities Act.
In a Bloomberg BNA interview, Linda Carter Batiste, a Principal Consultant with the Job Accommodation Network (JAN), proffers guidance on how employers may accommodate disabled applicants and employees, implement social media policies to deter disability-based harassment, respond to employee requests to bring animals to the workplace and prepare supervisory personnel to react to workers’ mental health episodes.
Bloomberg BNA: During the application process, what accommodations are employers required to provide for individuals with disabilities?
Batiste: Accommodations need to be customized on a case by case basis, depending on the limitations of each applicant. However, some of the more typical accommodations that employers must consider providing for the application process include the following: an accessible location for a person with a mobility impairment, a sign language interpreter for a person who is deaf, a reader for a person who is blind and modified testing, such as extra time to take the test for a person with a learning disability.
For more information, see Chapter V of the Title I Technical Assistance Manual at http://askjan.org/links/ADAtam1.html#V.
Bloomberg BNA: What are some do’s and don’ts with respect to pre-employment drug and alcohol testing when a job applicant can’t participate for medical or other reasons?
Batiste: If a person with a disability can’t take a drug or alcohol test the way the test is typically performed, the employer must consider alternative methods of testing to get the information the employer is seeking. For example, if a person can’t produce urine because of his disability, the employer might perform a blood test.
Note: Tests for illegal drugs are exempt from ADA rules related to medical testing so they can be done any time in the hiring process. Alcohol tests aren’t exempt from the rules so they must not be done until after a conditional job offer has been made.
Bloomberg BNA: Can you recommend strategies, guidelines and resources for evaluating web accessibility of online application systems for people with disabilities?
Batiste: The Job Accommodation Network has numerous tools for evaluating the accessibility of online application systems at http://askjan.org/topics/onlineapps.htm.
Bloomberg BNA: What kind of social media policies might employers implement to eliminate and prevent disability-based harassment in the workplace?
Batiste: To help address disability-based harassment related to the use of social media, the first step is to avoid using applicants' or employees' social media sites as a way to get information. Many individuals share disability-related information on social media without thinking about the possibility that their employers might see it.
Because employers may want to use social networks in the workplace, another thing employers can do is provide disability awareness training and train employees on the proper use of social media.
Bloomberg BNA: Because “service animal” isn’t defined under Title I of the ADA, how should employers respond to requests to bring animals—including service, therapy and emotional support animals—to the workplace?
Batiste: Employers should respond to a request to bring an animal to the workplace the same way they respond to any accommodation request. Modifying a no-animal policy for an employee with a disability is a form of reasonable accommodation that employers must consider, unless modifying the policy poses an undue hardship.
For more information, see “Service Animals in the Workplace” at http://AskJAN.org/media/servanim.html.
Bloomberg BNA: Employers juggle competing needs to accommodate employees with mental health impairments and to protect employees from potential workplace violence. What employer strategies might support employees’ mental health and might prepare management to respond to employees experiencing mental health episodes?
Batiste: Employers should focus on and address inappropriate conduct that any employee displays, regardless of their mental health impairments. Under the ADA, employers can have conduct rules related to preventing workplace violence and can require all employees to follow those rules.
If an employee with a disability indicates she will need an accommodation in order to comply with conduct rules, the employer should try to provide that accommodation unless it causes an undue hardship.
Bloomberg BNA: EEOC recently reached a $300,000 settlement in a lawsuit alleging a medical center failed to accommodate and fired an employee who required extended medical leave to obtain breast cancer treatment. What are some ways employers may accommodate employees who experience limitations from cancer or cancer treatment?
Batiste: In some cases, employees with cancer need leave time while undergoing treatment, while in other cases there may be accommodations that will enable an employee with cancer to continue working while in treatment. Accommodations should be made on a case by case basis, but employees with cancer often benefit from modified scheduling to attend treatment, flexible breaks to help with fatigue, work at home if the immune system is suppressed and reduction in stress.
For more accommodation ideas for employees with cancer, see http://askjan.org/media/canc.htm.
Bloomberg BNA: Some courts have found severe obesity and morbid obesity could constitute disabilities under the amended ADA. To the extent an employee’s body weight substantially limits one or more major life activity, what kinds of workplace accommodations are reasonable?
Batiste: Some examples of accommodations for employees with obesity include large-rated office chairs, safety equipment and ladders; roomier employer-provided vehicles; extra seating for air travel; and reduced walking in the workplace.
For more accommodation ideas for obesity, see http://askjan.org/media/obes.htm.
Linda Carter Batiste, J.D., is a Principal Consultant with the Job Accommodation Network (JAN), specializing in the Americans with Disabilities Act and other disability related legislation. She has been with JAN since 1992 and is a member of JAN's management team. She has a Master’s degree in rehabilitation counseling/vocational evaluation and a law degree from West Virginia University.
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