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Employment Practices: Minimize Potential Disability Liability Issues


Recommendations to Help Stem Losses from ADA ViolationsRecommendations to Help Stem Losses from ADA Violations

Enacted in 1990, the Americans with Disabilities Act (ADA) prohibits discrimination against individuals with disabilities in all areas of public life, including jobs, schools, and transportation. It imposes certain obligations on employers, and compliance with this law is important. For example, employers must try to accommodate an individual to ensure his or her right to equal employment opportunities. This means among other things that an employer must determine whether an employee’s accommodation request is reasonable, if accommodations can be provided without undue hardship, and if there are other effective accommodations that should be considered.

Even with the best intentions to comply with the law, employers still find themselves on the end of an employment practices lawsuit in violation of the ADA. What steps can you take as an employer to minimize your liability? Here are some recommendations.

  • Be sure to train all supervisors on how to identify and respond to accommodation requests. Keep in mind that an employee’s accommodation request does not need to contain the word “accommodation” to qualify as an accommodation request. Your HR Department should be notified of all accommodation requests to provide the appropriate response. Also, supervisors should be trained not to ask questions about medical conditions. HR should only be dealing with such questions, and all medical information should be kept confidential. A supervisor should be advised of the nature of the accommodation only. In addition, all documentation regarding the employee’s disability and accommodation should be maintained in a confidential medical file, not the employee’s personnel file.
  • Update your job descriptions so they accurately reflect the responsibilities of the position. All essential functions should be detailed.
  • Create a Disability and Accommodation Policy and include it in your employee handbook, affirming your commitment to compliance with disability laws and outlining the process employees should follow to make an accommodation request.
  • Ensure that you document the entire interactive process, including meetings with an employee requesting accommodation. Document all efforts to identify reasonable accommodations and those actually offered. If an accommodation request is denied, the reasons should be clearly documented.
  • Don’t insist that employees be “100% recovered,” or without any restrictions, in order to report to work. Instead, determine whether your firm may be obligated to accommodate the restrictions under state and federal disability law. Be sure to speak with an attorney on this issue.
  • Look at all accommodation requests, even if one seems unreasonable on its face. If an employee’s initial accommodation request cannot be granted, discuss possible alternative accommodations. You’ll be in a better position to defend a disability lawsuit if you have interacted with the employee regarding the request.

Also, review your employment practices liability insurance (EPLI) with a professional to make sure you are covered in the event of a lawsuit. Axis Insurance Services provides EPLI insurance and can help protect you and your firm. Give us a call at (877) 787-5258.

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Blogged on: January 14, 2015 by Mike Smith
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