A senior attorney with the Equal Employment Opportunity Commission (EEOC) recently answered questions from the public about the Americans with Disabilities Act (ADA) during an audio conference. Below is an edited version of excerpts of some of the questions and answers.
What is the EEOC’s position on light duty and return-to-work programs?
The EEOC’s stance is that light duty can be a required form of reasonable accommodation if it does not pose an undue hardship.
Often, employers provide light duty assignments for workers injured on the job, but not for those injured outside of work. However, when the injury amounts to a disability—regardless of where it was sustained—a light duty assignment may be required, if it would be an effective accommodation and allow the employee to return to work. Employers may require employees to return to work in a light duty capacity instead of granting leave.
However, that does not mean employers must develop light duty programs if one is not already in place. There is no requirement to create one. We interpret the law as requiring that employers consider whether allowing somebody with a disability to work in an existing program would be a reasonable accommodation absent undue hardship.
On the other hand, employers without such a program must still consider whether they can accommodate a worker’s restrictions, regardless of whether they call an arrangement “light duty”.
We have an employee who wants to bring his service dog to work, but the tasks the dog performs do not directly relate to the employee’s job functions. Must we allow the dog in the workplace?
The dog’s tasks don’t have to directly relate to the employee’s job functions; they need only eliminate a workplace barrier. For example, if the dog alerts him to an oncoming seizure or picks up things the employee drops that he cannot reach on his own, that would be reasonable, absent undue hardship.
In situations such as this, the commission holds that recruiting a co-worker’s assistance is not reasonable. Requiring another employee to help him retrieve dropped items, for example, is not a reasonable accommodation.
We have one employee that needs a service dog and one who is very allergic to dogs. Who should we accommodate?
The ADA doesn’t let you pick and choose. You need to find a way to separate these two employees’ workspaces so that the person who has the allergy (or phobia) doesn’t have to come in contact with the dog. Alternatively, you may investigate whether there is an accommodation other than a dog that would be equally effective for the first individual.
An employee with a mental health condition submitted medical documentation that her impairment interferes with her ability to perform work, meet deadlines and interact with others. She then submitted documentation from a different doctor that she is able to work with no restrictions or accommodations. What do we do?
If a good amount of time separated the two submissions, the employer can probably assume the most recent documentation is the one to follow. She may have received treatment, gone into remission or have begun a new medication since the first opinion was offered.
If there was little time between the two opinions, seek the employee’s permission to ask follow-up questions of the doctors. It would be even better if the employer were to talk to the employee. An employer can begin the interactive process and ask the employee to clarify. The employer should not discount the employee’s own assessment of his or her own abilities.
An employee threatened suicide, but then provided a doctor’s note explaining that job-related stress was the cause. Is this a “direct threat” situation that we don’t have to tolerate?
“Direct threat” applies to self as well as others, so it’s a possibility. However, an employer should start by looking at whether the stress is still the same. Has it been removed? An employer should talk to the employee and try to assess whether he or she really poses a direct threat. Maybe it was a real threat, or maybe the person did not mean it literally.
The ADA only deals with employment actions taken based on the employer’s belief that a medical condition prevents a worker from performing his or her job. If that’s due to a direct threat, that’s a pretty high standard to meet. However, if an employer can show that it had reason to believe the employee was serious, based on objective evidence, it is probably OK for the employer to refer them to an employee assistance program, ask for a doctor’s note, etc.
We have an unwritten policy that prohibits deaf individuals from operating forklifts. Is this OK?
Blanket exclusions are risky. If you implement a qualification standard that excludes a person with a disability, you must be prepared to show that it is job-related and consistent with business necessity. This means showing that a forklift cannot be operated by a deaf individual (without them posing a direct threat) and that there is no reasonable accommodation that would enable them to do so.
Standards like this can easily run afoul of the law, because the ADA requires an employer to assess each individual on a case-by-case basis. If a person who is hearing impaired or deaf has experience operating a forklift successfully, this would be difficult to show.
We’d like to have a general idea of how many workers with disabilities we employ. Can we implement a voluntary disclosure process?
Yes, if the information is being used as part of an affirmative action plan or to determine whether you’re accommodating and advancing employees with disabilities. In addition, the information must remain confidential, anonymous and aggregated. For smaller companies, this may be risky because employees may be easily identified.