HR Departments Focus on ADA Compliance/Employee Leave Issues (4/16)

HR Departments Focus on ADA Compliance/Employee Leave Issues

Human resource (HR) professionals are taking on more responsibility than ever before in a business era rife with mergers, benefits concerns and employee lawsuits. However, personnel departments often find themselves struggling to understand how ever-changing employment laws affect their companies and its workers. For example, when facing situations that may be covered by employment-related legislation, such as the Americans with Disabilities Act (ADA), HR faces the difficult challenge of how to appropriately coordinate employee leave.

A new survey by the Society for Human Resource Management (SHRM) focuses on the many issues employers face when attempting to comply with the Americans with Disabilities Act (ADA) of 1990. However, according to SHRM, HR professionals indicate they have had the greatest degree of uncertainty regarding the interaction between the ADA and the Family and Medical Leave Act (FMLA).

Employment law specialist Scott Lawson, associate in the California law firm of Quinn Emanuel Urquhart Oliver & Hedges, LLP, says an employee requesting leave under the FMLA may also be "disabled" for purposes of the ADA. "Compliance with one of these statutory schemes does not excuse compliance with the other," he explains. "Consider, for example, an employee who requests a four-day work week because of a disability. Even if the employer were able to show that, for ADA purposes, it was not required to provide the modified work schedule because it would be considered an undue hardship on the employer, it may nonetheless have to provide one day's leave per week under the FMLA if the leave is medically necessary."

Another major challenge for employers under ADA is the concept of "reasonable accommodation." The ADA requires employers to eliminate workplace barriers, both physical and procedural, for workers with disabilities. "The employer must also remember that the ADA applies not only to current employees, but to job applicants as well," reminds Lawson.

Perhaps equally as important, employers must be willing to remove barriers to communication and engage in dialog with their employees about disabilities. Lawson says more ADA litigation results from a failure to communicate than from anything else.

"In fact, courts have consistently held that, once an employee indicates that he or she may need an accommodation, the employer has a duty to initiate an interactive process with the employee to identify the employee's work limitations and determine an appropriate accommodation," he explains.

Lawson advises finding out what the employee's disability is and what work modifications the employee is seeking. In many cases, accommodations can be made with very little cost and effort. After all, says Lawson, a $50 computer keyboard is far less expensive than a lawsuit.

Legal experts agree: The best thing an employer can do to avoid problems under the ADA is to be aware of what its obligations are. The most important recent development under ADA was the Equal Employment Opportunity Commission's new "Reasonable Accommodation and Undue Hardship Guidelines" for March 1999. The paper answers a wide variety of common questions about an employer's responsibility in accommodating its workers with disabilities, from job restructuring and modified work schedules, to disability leaves and job reassignment.