人力资源洞察:避免10个常见的ADA错误

The ADA Amendments Act of 2008 broadened the definition of disability previously established by the Americans with Disabilities Act (ADA) and effectively expanded the group of people who would qualify as disabled. The amendments put more pressure on employers to provide reasonable accommodations and created more potential liability for companies that are not in careful observance of the law. This article provides helpful guidance for employers to follow, as well as common mistakes to avoid.

雇主可以做什么

There are steps employers can take to protect themselves from liability and prepare their company in case of a future lawsuit.

保持职位描述的详细和准确

It is important that job descriptions are kept up to date and include essential functions of a job. Remember that employers generally have a responsibility to reasonably accommodate an employee who cannot perform an essential function. 然而, an employer does not have to eliminate an essential function of a job position as part of a reasonable accommodation. Essential functions in a job description can be one factor in legally proving that the task is indeed essential to the job; these functions can include physical requirements like lifting or standing and stamina requirements like working long hours or weeks.

制定住宿政策

Creating and distributing a reasonable accommodation policy can demonstrate your commitment to honoring the ADA. 该政策应将所有合理的住宿要求直接提交给HR 

而不是给主管, as HR professionals are better equipped to deal with the nuances and legal risks of handling these types of requests.

培训主管

即使你直接把员工交给人力资源部, supervisors still need to know how to handle the situation if a reasonable accommodation is requested of them. 他们不应该对请求回答“是”或“否”, 不管它是否可行, 而是应该把这种情况提交给人力资源部. 除了, supervisors must be trained to handle potential ADA situations that may arise during a job interview or in their daily work with employees. 

常见的错误

In navigating the ADA, HR professionals should be careful to avoid these common mistakes.

1.  Ending accommodation dialogue with an employee if no reasonable accommodation can be found to help the employee perform an essential job function. 在这种情况下, 雇主应该考虑其他安排，比如兼职工作, 重新分配员工或提供无薪休假.

2.  相信经理的话，一个职能实际上是必不可少的. 如果这个问题上法庭，将会引起争议, so employers should investigate themselves to determine whether a function in question is essential or not. 

3.  过于随意地使用“过度困难”条款. 例如, reasons such as cost or other employees’ reactions will generally not be accepted by the court as an undue hardship for providing a reasonable accommodation.

4.  与员工的经理讨论残疾的细节. The manager should generally only know the nature of the accommodation being provided. An exception is if the disability affects how the manager will interact with the employee, 比如听力障碍.

5.  没有考虑其他适用于雇员残疾的法律. 例如, a disability under the ADA often also qualifies as a serious health condition under the Family and Medical Leave Act (FMLA), 因此FMLA法律和条款可能会发挥作用.

6.  Rejecting an employee’s request because it seems unreasonable or impractical. Employers should still engage in a dialogue with the employee to see if a solution can be reached. 即使您仍然确定该请求是不可行的, it is important to follow the full process to reach that decision (and document it completely).

7.  Eliminating essential functions as an accommodation, even for a limited period. 虽然有时这是一个可行的解决方案, it can also make it harder to argue later that the function is essential for this or any employee. 除了, other employees may argue that the function should not be essential for them either, 或者声称歧视. 为了安全起见, emphasize that suspending or relaxing the essential function is temporary and document the specific reasons for this action to avoid discrimination claims from other employees.

8.  未能妥善记录被拒绝的住宿请求. Documenting the process followed and the reason for denial will help your defense in the event of litigation.

9.  Taking performance into account when deciding if an accommodation is reasonable. All workers should be treated the same in this process, whether high performers or underachievers.

10.  Not considering reasonable accommodations just because the employee doesn’t offer any specific ideas. 如果员工告诉HR他或她需要住宿, 雇主有责任调查潜在的住宿条件.

现在比以往任何时候都重要, the burden has shifted to employers to provide reasonable accommodations when possible and show care in handling disability-related issues in the workplace. It is important that you are familiar with the nuances of the ADA and the ADA Amendments Act to keep your company in compliance and avoid costly lawsuits and penalties.

This 人力资源的见解 is not intended to be exhaustive nor should any discussion or opinions be construed as professional advice. ©2011-2013、2015、2019、2023 Zywave, Inc. 版权所有.