One little mistake involving the Americans with Disabilities Act (ADA) can lead to a full investigation of all your company’s administrative practices, potentially resulting in huge fines or lawsuits. It is extremely important to not make these mistakes, especially since the Equal Employment Opportunity Commission (EEOC) isn’t known to be a forgiving agency.
To help prevent that from happening ComPsych, a provider of FMLA and ADA administration services, combed through a years’ worth of data in its AbsenceResouces administration platform to identify the top three ADA mistakes employers are making that would have the EEOC cops salivating.
They are as follows:
1. Leave inflexibility
The EEOC isn’t a fan of “inflexible leave” policies — those that mandate employees be terminated once they’ve exhausted a set amount of leave. The EEOC says such policies are illegal because they shut the door on exploring the possibility of offering additional leave as a reasonable accommodation under the ADA. Basically, even after exhausting six months of leave, an employer must still enter the interactive process to see if a reasonable accommodation exists that would allow the employee to return to work. It’s only after completing the interactive process, if no reasonable accommodation can be found, should employers take the next step toward termination if the six months of leave is up.
2. Failure to understand the interactive process
The EEOC has yet to issue any sort of comprehensive guidance on the interactive process.
Here’s what we know is required of employers: When it becomes known that an employee has an ADA-covered disability that prevents the person from performing an essential function of his or her job, it’s the employer’s responsibility to “interact” with the employee to determine if a reasonable accommodation can be granted that would allow the person to perform that essential function.
So in a nutshell, you have to learn about the employee’s disability and ask yourself if there’s something you can do — within reason — to help the employee perform his or her duties.
3. Not identifying when ADA leave should be granted
Some employers still have trouble identifying when an employee should be granted leave under the ADA. One common misstep: When an employee exhausts his or her FMLA leave time, the person’s automatically denied additional leave, even though the person may qualify for added leave under the ADA. Exhausting FMLA leave doesn’t disqualify the person for leave under the ADA. Also, it’s possible for an employee to qualify for ADA leave without qualifying for FMLA leave, said ComPysch. For these reasons, it’s always critical to enter the interactive process when it becomes known an employee has a disability — regardless of how (or even if) the FMLA is involved.