July 2016 marks the 26th Anniversary of the passage of the Americans with Disabilities Act (ADA). And, the Equal Employment Opportunity Commission (EEOC) has job of enforcing Title I of the Act, which covers employment discrimination provisions for those with disabilities.
Rest assured, they’re still at it, 26 years later. In the first half of 2016, the EEOC settled three cases involving the ADA, totaling a quarter of a million dollars in fines and payouts, as well as requiring training for managers.
The moral of the story?
The EEOC is watching and will prosecute if the ADA is violated.
So, how can you protect your company?
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First, check with your HR lead and CCO to ensure your non-discrimination and equal employment opportunity policies are current. The National Law Review suggests, “….looking at the leave of absence policies to see that they provide flexibility to allow consideration of an extension of a leave of absence as a reasonable accommodation, rather than strict maximum cutoffs for use of leave.”
A recent case in Michigan that involved an employee who went on pre-authorized leave for surgery but whose employment was terminated before he was expected to return to work resulted in a payment of $187,500. Plant managers and human resources staff were also required to participate in mandatory training on disability discrimination and reasonable accommodations under the Americans with Disabilities Act (ADA).
Looking at the leave of absence policies to see that they provide flexibility to allow consideration of an extension of a leave of absence as a reasonable accommodation, rather than strict maximum cutoffs for use of leave.
Next, confirm your management team is fully trained. When the EEOC comes knocking you can show them your updated policies; but if the management and staff aren’t up to speed on policies they are required to enforce and follow, your company will be held accountable.
Specifically, when considering the ADA, “Human resources professionals, managers, and front-line supervisors should understand that an individualized assessment is part of the reasonable accommodation process and that reasonable accommodation discussions should be focused on each employees’ specific needs rather than assumptions based on stereotypes or past practices.”
Two other cases from earlier this year resulted in approximately $30,000 of fines, and each involved management not making the appropriate accommodations for employees’ disabilities.
The first case concerned an employee who had had a seizure at work. He was put on medical leave and wasn’t permitted to return to work for nine months despite being cleared for work by a doctor for the last six of those months. According to Omar Weaver, senior trial attorney for EEOC’s Detroit Field Office, “An employer cannot single out an employee who has a disability and impose a unique and over-protective rule on that person as a condition of employment.”
In the second case the employee was deaf. Rather than hire a sign language interpreter they used notes that were often not understandable to the employee. In this case, managers should have taken into account this individual’s needs and provided better support so that the employee could be successful.
When the EEOC comes knocking you can show them your updated policies; but if the management and staff aren’t up to speed on policies they are required to enforce and follow, your company will be held accountable.
The third step is to consider your culture. Ask yourself: What is the tone from the top regarding persons with disabilities?
Supervisors and managers should know they have executive support and access to resources that will enable them to make reasonable accommodations. Then, situations can be resolved in the workplace before they result in an EEOC charge or lawsuit. Employees should also feel secure in their jobs regardless of existing disabilities or health issues that arise.
If you take these three things into account you are likely to keep you company safe from EEOC legal action. You will also be providing a safe and inclusive work environment for current and future employees.
And that is just showing leadership as a good human.
Ask yourself: What is the tone from the top regarding persons with disabilities?