Navigating the ADA

Disability Disconnect

Fear of litigation, complex regulations and misperceptions of disability are leading to few disabled workers being employed. 
By: | October 15, 2015 • 7 min read

There are fewer disabled individuals being employed now than before the Americans with Disabilities Act was passed 25 years ago. Experts blame a number of factors.

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But no matter how complicated the causes may be, experts say that disability and absence management professionals can help reverse this trend by revamping their policies and procedures, and working to change organizational beliefs around what disabled workers can actually do when reasonably accommodated.

Thirty years ago, 25 percent of people between the ages of 21 and 64 who had a work limitation were employed, according to Cornell University. In 1989, the year before the ADA passed, that proportion reached a high of nearly 29 percent. By 2014, the percentage of people with a disability who were employed had fallen to 13 percent.

The reasons for the downward trend are complex, but a good deal of the problem lies with the fact that regulations pertaining to employment of disabled individuals actually conflict with each other, said Terri L. Rhodes, CEO of the Disability Management Employer Coalition in San Diego.

The problem is exacerbated by the new Section 503 affirmative action regulations that require an “aspirational” 7 percent goal for employment of disabled workers by U.S. federal government contractors or subcontractors of $10,000 or more.

Terri Rhodes 230X300

Terri L. Rhodes, CEO, Disability Management Employer Coalition

“What makes the situation difficult is that departments that manage talent recruitment and retention are asking applicants to disclose disabilities, which is not allowed under other regulations, like the ADA,” Rhodes said.

“Yet there are individuals who work in HR or risk management who are managing workers’ comp claims and/or leaves of absence that are not aware that an individual has disclosed a disability and may take adverse action unknowingly.”

Moreover, many employers are now grappling with the broadened definitions of disability in the amended ADA of 2009, she said.

Before that revision, the ADA defined disability as an impairment that substantially limits one or more major life activities, so it was easier for employers to determine if and how they could reasonably accommodate an impaired worker, Rhodes said.

Now, the expanded definition means more people are potentially affected, and employers are struggling to keep up.

“Employers have to ensure there is qualified staff to manage the process, as there are so many details to managing an accommodation request,” she said. “They must talk with the individual, engage them in the interactive process, follow up timely, provide updates to the process, talk with the supervisor, look at potential safety issues, include occupational health, if needed — all with the goal of assessing whether an impairment can be accommodated.”

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Another factor is a new provision granting an injured employee additional time away from work as a reasonable accommodation, Rhodes said.

Employers must hold open an injured worker’s job unless it causes significant difficulty or expense for the employer, but does that mean indefinitely? The Equal Employment Opportunity Commission has yet to issue clear guidance on the matter.

“Employers are looking for some guidance on when enough is enough — how long is it reasonable to hold someone’s job so they can stay off work,” she said. “That’s causing the most angst among employers.”

Fear of Lawsuits

J. Bradley Young, a partner at Harris, Dowell, Fisher & Harris LC in St. Louis, said that many employers are less likely to hire disabled workers because they fear being sued under the ADA, which euphemistically has been called the “Lawyers’ Full Employment Act.”

However, he said, the risk of litigation is limited if employers understand what the ADA requires and what it doesn’t require.

“Many employers don’t understand what ‘reasonable accommodation’ means,” Young said.

“It doesn’t mean the employer has to take all steps humanly possible to accommodate a disabled worker. They don’t have to create new jobs, they don’t have to invest in overly expensive accommodations — the accommodations only have to be reasonable.

“If more employers understood that, they would be more likely to hire disabled Americans,” he said.

“Employers are looking for some guidance on when enough is enough — how long is it reasonable to hold someone’s job so they can stay off work.” — Terri Rhodes, CEO, Disability Management Employer Coalition

Another reason employment of disabled people has fallen is that it’s much easier to apply for and to  receive Social Security disability (SSD) benefits, he said, noting that the number of people on disability benefits over the past decade has “skyrocketed.”

Plus, he said, the downward trend in unemployment of the disabled feeds on itself. When there are fewer jobs available, more people turn to governmental benefits for some type of income.

“If employers don’t have the proper legal advice, their risk of litigation increases, and the number of people applying for SSD increases, which puts us all in a worse position nationally when the number of people in the workforce is reduced,” Young said.

Busting Pre-Conceived Notions

Amber Cheek, disability inclusion and ADA compliance manager at the University of Missouri in Columbia, Mo., said she believes the problem of lower employment is rooted in erroneous organizational beliefs about the true nature of disability.

Indeed, there is often a disconnect between what supervisors think they know about disability, and what people with disabilities can really do in the workplace.

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“I know of one supervisor who was thinking of hiring a blind person and privately expressed concern about having to take her to the bathroom all the time,” she said.

“I just laughed and said that maybe he would need to show her around the first couple of days, but blind people learn their way around much faster than most sighted people think. It just takes educating supervisors about what persons with disabilities can do.”

Supervisors typically receive EEO compliance training that teaches the importance of not discriminating against the disabled, but that does not dispel preconceived ideas about disability, Cheek said.

Training should also entail videos explaining what employees with disabilities can do, as well as role playing on ways supervisors can approach the subject of reasonable accommodations with workers.

For example, when onboarding new employees, supervisors could say, “We support employees with disabilities. If you ever need reasonable accommodations, just let us know.”

“This sets a tone that makes the employee feel safer in disclosing their disability,” Cheek said, “and makes it more likely that able-bodied employees will disclose if they acquire a disability later.

Rachel Shaw, president, Shaw HR Consulting

Rachel Shaw, president, Shaw HR Consulting

“Most importantly, supervisors should provide a welcoming environment when people are first hired, because many are not comfortable talking about their disabilities until they know their supervisor will be supportive.”

Rachel Shaw, president and principal consultant at Shaw HR Consulting in Newbury Park, Calif., said she has noticed that employers are accommodating the disabled “more than ever,” particularly within workers’ comp claims, because of the ADA and other disability compliance laws in individual states.

However, she noted that accommodations can also be leaves of absence under the Family and Medical Leave Act — and that use of the FMLA has “skyrocketed.”

Be Interactive

As most employers know, an interactive process with the employee can determine whether a reasonable accommodation is required. That process should begin as soon as an applicant or employee verbalizes concern, or when there are performance changes, attendance problems or workplace rumors, Shaw said.

It’s important to designate one or more people within the organization to be the “interactive process coordinator,” she said.

The coordinator should discuss the reasonable accommodation process with the applicant or worker, what the individual can expect in terms of timelines, information that will be requested and possible outcomes.

“Very rarely the issues around accommodation are of cost.” — Rachel Shaw, president, Shaw HR Consulting

That individual should not be the one to decide whether or not to reasonably accommodate a disabled worker, she said. Instead, coordinators should obtain the information necessary to help make decisions, including medical reports on possible restrictions on whether the individual can perform the essential functions of the job.

“Very rarely the issues around accommodation are of cost,” Shaw said. “Accommodations more typically can be done using different tools or methods, and the key is knowing the essential functions of the assignment.”

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Interactive process coordinators may also consult with colleagues, disability consultants or attorneys.

“You are only entitled to the same level of employee performance as you had before the injury or disability,” she said. “Reasonable accommodation is the goal of the interactive process, but when you can’t accommodate, be sure you have a well-documented process and feel confident in your decision.”

Most importantly, employers need to do the same process every time for every employee, until the process is no longer needed, and they need to document everything.

“Having a well-defined process will help employers make good decisions,” Shaw said.

Katie Kuehner-Hebert is a freelance writer based in California. She has more than two decades of journalism experience and expertise in financial writing. She can be reached at [email protected]

More from Risk & Insurance

More from Risk & Insurance

4 Companies That Rocked It by Treating Injured Workers as Equals; Not Adversaries

The 2018 Teddy Award winners built their programs around people, not claims, and offer proof that a worker-centric approach is a smarter way to operate.
By: | October 30, 2018 • 3 min read

Across the workers’ compensation industry, the concept of a worker advocacy model has been around for a while, but has only seen notable adoption in recent years.

Even among those not adopting a formal advocacy approach, mindsets are shifting. Formerly claims-centric programs are becoming worker-centric and it’s a win all around: better outcomes; greater productivity; safer, healthier employees and a stronger bottom line.

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That’s what you’ll see in this month’s issue of Risk & Insurance® when you read the profiles of the four recipients of the 2018 Theodore Roosevelt Workers’ Compensation and Disability Management Award, sponsored by PMA Companies. These four programs put workers front and center in everything they do.

“We were focused on building up a program with an eye on our partner experience. Cost was at the bottom of the list. Doing a better job by our partners was at the top,” said Steve Legg, director of risk management for Starbucks.

Starbucks put claims reporting in the hands of its partners, an exemplary act of trust. The coffee company also put itself in workers’ shoes to identify and remove points of friction.

That led to a call center run by Starbucks’ TPA and a dedicated telephonic case management team so that partners can speak to a live person without the frustration of ‘phone tag’ and unanswered questions.

“We were focused on building up a program with an eye on our partner experience. Cost was at the bottom of the list. Doing a better job by our partners was at the top.” — Steve Legg, director of risk management, Starbucks

Starbucks also implemented direct deposit for lost-time pay, eliminating stressful wait times for injured partners, and allowing them to focus on healing.

For Starbucks, as for all of the 2018 Teddy Award winners, the approach is netting measurable results. With higher partner satisfaction, it has seen a 50 percent decrease in litigation.

Teddy winner Main Line Health (MLH) adopted worker advocacy in a way that goes far beyond claims.

Employees who identify and report safety hazards can take credit for their actions by sending out a formal “Employee Safety Message” to nearly 11,000 mailboxes across the organization.

“The recognition is pretty cool,” said Steve Besack, system director, claims management and workers’ compensation for the health system.

MLH also takes a non-adversarial approach to workers with repeat injuries, seeing them as a resource for identifying areas of improvement.

“When you look at ‘repeat offenders’ in an unconventional way, they’re a great asset to the program, not a liability,” said Mike Miller, manager, workers’ compensation and employee safety for MLH.

Teddy winner Monmouth County, N.J. utilizes high-tech motion capture technology to reduce the chance of placing new hires in jobs that are likely to hurt them.

Monmouth County also adopted numerous wellness initiatives that help workers manage their weight and improve their wellbeing overall.

“You should see the looks on their faces when their cholesterol is down, they’ve lost weight and their blood sugar is better. We’ve had people lose 30 and 40 pounds,” said William McGuane, the county’s manager of benefits and workers’ compensation.

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Do these sound like minor program elements? The math says otherwise: Claims severity has plunged from $5.5 million in 2009 to $1.3 million in 2017.

At the University of Pennsylvania, putting workers first means getting out from behind the desk and finding out what each one of them is tasked with, day in, day out — and looking for ways to make each of those tasks safer.

Regular observations across the sprawling campus have resulted in a phenomenal number of process and equipment changes that seem simple on their own, but in combination have created a substantially safer, healthier campus and improved employee morale.

UPenn’s workers’ comp costs, in the seven-digit figures in 2009, have been virtually cut in half.

Risk & Insurance® is proud to honor the work of these four organizations. We hope their stories inspire other organizations to be true partners with the employees they depend on. &

Michelle Kerr is associate editor of Risk & Insurance. She can be reached at [email protected]