Managing Workplace Accommodations

A Strategic Approach

There is a process, there is an approach, and there are laws.

Managing employee medical conditions in today’s workplace is a growing concern and a challenging endeavor, particularly in the post-Covid era, not to mention the expanding focus on behavioral health conditions. (I’ve been a psychotherapist and disability management professional since the 1980s – FINALLY!)

But in all the madness of this rapidly changing workplace climate and the flurry of laws and case decisions that emerge, there IS a strategic method available that WILL help keep you sane (and in compliance)! It’s called the “interactive process” designed to help employers and employees confidentially address situations when medical conditions impact work.

If this is NEW to you, you’re not alone!

Although the Americans with Disabilities Act (ADA) has been around since 1990, many employers* remain unaware of their responsibilities and requirements to engage in the interactive process when there is knowledge that a medical condition impacts an employee’s ability to:

• Be at work
• Stay at work, and
• Perform the work of their assigned job

*(for those employers with 15 or more employees)

The ADA provides a structure that allows employers to confidentially pursue medical information when these three factors apply. Employers and Employees BOTH have roles, responsibilities, and requirements to engage together to determine if readily achievable, effective accommodations are available that allow the employee to work safely without placing an undue burden on the employer.

Did you know…

• Disability discrimination claims (36.1 %) are second only to the number of claims for retaliation/reprisal (55.8%), according to the Equal Employment Opportunity Commission (EEOC – the federal agency that oversees the administration of the Americans with Disabilities Act).
• And a myth exists about the “Failure to Engage in the Interactive Process.”

Myth: Many believe that discrimination shows up in less than 2% of these types of EEO complaints.

Fact: In reality, discrimination occurs in at least a third of the EEO cases related to “failure to engage.” Where’s the discrepancy? The EEOC encourages early resolution of cases, both before and after a formal complaint is filed. Thus, it is only the 2-3% that attracts visibility and attention.

• BOTTOM LINE: There are RISKS for Employers who fail to engage, and many don’t realize what’s at stake!

Employers who fail to engage in the mandatory “interactive process” to address the viability of reasonable accommodations for employees with disabilities may face legal consequences.

There are costs to employers that can vary significantly depending on the specific circumstances, legal fees, potential damages, and reputational impact. It’s crucial for employers to proactively engage in the interactive process to avoid legal pitfalls and financial consequences. And by being proactive, it creates the opportunity for the employer to foster an inclusive and supportive workplace environment.

Early investment in the process can save employers BIG bucks later on. Better to err in the direction of doing something proactive rather than ignoring | denying | defending the existence of an employee’s medical condition and resulting limitations.

Remember, these are general trends, and each case is unique. Best practices encourage employers to prioritize open communication, connect with care | concern | confidentiality, while promoting a collaborative approach that ensures compliance with anti-discrimination laws while promoting inclusivity in the workplace.

Source: EEOC Releases Fiscal Year 2020 Enforcement and Litigation Data | U.S. Equal Employment Opportunity Commission

So, What IS the Interactive Process?

The Interactive Process is a niche area of dispute resolution practices that focus on three key areas of protection under Title VII of the Civil Rights Act of 1964 affecting employment practices:

1. Medical conditions (disability)
2. Religious accommodation
3. Domestic Violence (and/or threats at the workplace)

The Interactive Process provides a confidential venue for employees with medical conditions and their employers to work together to explore how the identified medical condition impacts their ability to work. The goal is to restore them to full functioning in the essential functions of their job - with or without accommodation(s), while preserving the safety of the employee and those around them without creating an undue burden on the employer.

The Equal Employment Opportunity Commission (EEOC) continues to report that a significant percentage of complaints involve allegations of “failure to engage” in the interactive process, which is considered a violation of the Americans with Disabilities Act (ADA).

A large number of complaints also applies to employers who fail to provide or consider readily achievable, effective accommodations when requested. The factors behind these kinds of EEOC charges against employers are many so it is critical to understand some basic guidelines so this doesn’t happen to YOU.

As employers and HR professionals strive to foster inclusive and supportive environments, understanding the interactive process becomes paramount. And keep in mind, we all experience medical conditions at some point in our life – this could be YOU in need of an accommodation around a medical condition.

This newsletter outlines strategic approaches, legal obligations, and the importance of flexibility, alongside vital statistics that underscore the urgency of these matters.

Here are four emerging trends that apply to today’s (and tomorrow’s) workplace.

1. The Rise of Remote Work as a Reasonable Accommodation

The COVID-19 pandemic has irrevocably changed the landscape of work, with remote work emerging as a viable reasonable accommodation for employees with medical conditions.

Employers must navigate the complexities of determining if and how a job can be effectively performed remotely, ensuring compliance with the Americans with Disabilities Act (ADA) and other relevant laws.

This trend involves exploring strategies for engaging in good-faith negotiations, assessing essential functions to determine if they can realistically be performed remotely to the level of job performance/productivity required and without undue burden on the employer’s services and/or operations. Implementing remote work accommodations can benefit both the employee and the organization while improving retention and loyalty. (NOTE: Remote work is always evaluated on a case-by-case basis when remote work is requested as an accommodation).

What you should know!

• Remote Work Accommodations: 80% of employees with disabilities report improved job performance and satisfaction when granted remote work accommodations.

BEWARE: If remote work is already an option for your employees – DANGER, DANGER if an employee’s request for remote work on the basis of a medical condition is likely to land you BEFORE the EEOC.

2. Addressing Mental Health in the Workplace

As recognition of today’s mental health crisis increases, so does awareness of the need for accommodations in the workplace. Conditions such as depression, anxiety, and PTSD require employers to be proactive in their approach and support of employees as individuals, requires an increased understanding of their legal obligations, while providing effective support systems that foster and encourage employee well-being.

This trend emphasizes the nuances of accommodating mental health conditions, where employees feel supported to disclose their needs, while fostering an environment recognizing the importance of mental health, and taking steps to implement individualized accommodations.

What you should know!

• Mental Health in the Workplace: 1 in 5 adults experience a mental health condition each year, yet less than half receive treatment, highlighting the critical need for workplace accommodations.

3. Legal Framework and Employer Obligations

Understanding the ADA and other disability laws is crucial for employers to navigate the interactive process effectively. It can be both simple and complex.

To manage the interactive process effectively, it involves confidential discussions with employees about their medical needs for accommodation, maintaining appropriate and confidential documentation, and ensuring decisions are made in a non-discriminatory manner and include multiple perspectives.

This trend, in light of disability complaints as 2nd highest among all EEOC complaints, underscores the importance being proactive, maintaining confidentiality, the need for clear communication and action plans for exploring | evaluating | initiating accommodation options, and the benefits of adopting a flexible, individualized approach to accommodations.

One size does NOT fit all!

Saying NO without engagement with an employee with a medical condition is a sure-fire way to an introduction to the EEOC!

What you should know!

• Legal Obligations: 70% of ADA lawsuits could be avoided with proper engagement in the interactive process, emphasizing the need for employer compliance and understanding.

4. The Importance of Training and Education

Not enough can be said about the importance of training and education of leadership at all levels to ensure compliance with the ADA while fostering a supportive and inclusive workplace culture.

Many missteps are made by new supervisors and managers, as well as decision-makers and human resource professionals, who are either uninformed, OR allow their biases and attitudes towards people with medical conditions surface.

Managers should know that publicly criticizing complainants or treating them with contempt is not just a bad idea; it may in fact violate the law. Calling complainants "whiners" or "poor performers" or “too sensitive” may result in a claim of reprisal – which is already the number one basis of complaints. This display of behavior on the part of leaders at any level leave employees feeling isolated, ignored and abandoned, leading to claims of hostile work environments, whether real or perceived. And remember, “perception is reality.”

This trend provides insights into the “why” behind the critical importance of providing training programs that cover disability rights, the interactive process, and the significance of mental health support in the workplace. Knowledge is power and training provides the power and the venue designed to equip staff with the knowledge, skills, and abilities to handle accommodation requests timely, effectively, with empathy, and in compliance with the law(s).

What you should know!

• Navigating the interactive process for employee accommodations requires a strategic, informed approach that balances legal obligations with empathy and flexibility.
• By fostering open communication, respecting privacy, and adopting an individualized approach, employers can create an inclusive work environment that supports the well-being and productivity of all employees.

Creating Actionable Plans as a Path for Moving Forward

In our commitment to fostering inclusive and supportive workplaces, it's crucial to equip both leaders/employers and workers/employees with actionable plans.

These strategies are designed to navigate the complexities of workplace accommodations effectively, ensuring a collaborative and compliant approach to disability and mental health accommodations.

For Leaders and Employers:

• Establish Clear Policies: Develop and communicate clear policies regarding workplace accommodations, including the process for requesting accommodations and the types of support available. Ensure these policies are easily accessible to all employees.
• Engage in the Interactive Process: Actively engage in the interactive process by listening to accommodation requests, discussing potential solutions, and considering various options. Remember, flexibility and creativity can lead to effective accommodations.
• Provide Training: Offer regular training sessions for managers, supervisors, and HR personnel on the legal aspects of workplace accommodations, the importance of mental health support, and how to handle accommodation requests with sensitivity and confidentiality.
• Implement Support Systems: Create support systems for employees needing accommodations, such as peer support groups, access to counseling services, and connections to external resources. These systems can enhance the well-being of all employees.
• Monitor and Adjust: Regularly review the effectiveness of accommodations and be open to making adjustments as needed. Continuous dialogue with the employee is key to ensuring the accommodation remains effective and beneficial.

For Employees:

• Know Your Rights: Educate yourself on your rights under disability laws and your employer's policies on workplace accommodations. Understanding these rights is the first step in advocating for yourself. Here are two great resources to get started: 1) JAN 2) ReWork’s TIP
• Communicate Clearly: When requesting accommodations, be clear about your needs and how they relate to your job performance. Be prepared to provide documentation from your healthcare provider(s) supporting the existence of a medical condition and how condition impacts activities of daily living (ADLs), specifically work if requesting a work-related accommodation.
• Collaborate with Your Employer: Engage openly and collaboratively with your employer during the interactive process. Be prepared to discuss alternative accommodations and find a mutually beneficial solution.
• Utilize Available Resources: Take advantage of support systems offered by your employer, such as Employee Assistance Programs (EAP) with free counseling services, peer support groups, or wellness programs. These resources can provide additional support and guidance.
• Provide Feedback: After accommodations are in place, provide feedback to your employer about their effectiveness. Address what further modifications and/or changes may be needed. Maintaining open communication helps refine the accommodation process to ensure your medical needs and ability to function are met.

We encourage you to share your experiences, strategies, and questions on managing workplace accommodations. Your insights enrich our community's understanding and approach to these complex issues.

Stay Informed, Stay Supportive. And, connect with the 3Cs – Care, Compassion and Concern. This could be YOU with a medical condition that impacts your work!

"I just want to take this time to express how appreciative I am of your expertise and willingness to assist us. We called you last minute to facilitate an IPM, and I was blown away by how you handled the meeting and how you addressed the employee's questions and concerns. This meeting could have gone in a very different direction, but having you facilitate the meeting made a world of difference. We appreciate you!"

- C. Jimenez-Sanchez, Valley Center-Pauma USD

Allen Williams, Executive Director of HR Bonsall Unified School

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