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

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.

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.”

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.

“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.”

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]

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