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A Human Resource Perspective on Implementing the ADA

Revised Date: 2011
Original Date: 2001
Authorship History: This brochure was written by Susanne Bruyère in July, 2001. It was further updated in 2011 by Beth Reiter, an independent legal consultant, Ithaca, N.Y., with assistance from Sara Furguson, a Cornell University Employment and Disability Institute student research assistant.
 
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Introduction

Human Resource (HR) professionals are key players in business organizations’ implementation of the employment provisions of the Americans with Disabilities Act of 1990 (ADA), which prohibits, among other things, discrimination based on disability in the workplace. HR professionals are involved with recruitment, pre-employment screening and testing, and the reasonable accommodation process, as well as benefits, performance management, disability leave, and other parts of the employment process. Because of this broad involvement, they are in a key position to help their organizations minimize disability employment dis­crimination and maintain ADA compliance. The purpose of this publication is to point out some places where the contribution of HR professionals can help busi­ness organizations create a culture and process that will facilitate the accommo­dation requirements of the ADA and minimize the likelihood of discrimination against applicants and employees with disabilities.

 

Approximately 14 percent of Americans have some form of disability.1 Many of these individuals are unemployed or underemployed, compared to their non-disabled peers, and represent a significant, and as yet untapped, U.S. labor pool.

In order to examine continuing barriers to employment for people with disabili­ties in the years since the passage of the ADA, the Society for Human Resource Management (SHRM) partnered with Cornell University to conduct a survey of SHRM membership in the fall of 1998. The research was based on the premise that the implementation of the employment provisions of disability nondis­crimination legislation is often a function of HR professionals, who are typically responsible for employment policies and practices that affect the hiring and re­tention of workers with and without disabilities.2 This guide offers suggestions for maximizing the contribution of HR professionals toward implementation of the ADA, and makes recommendations based upon what this survey revealed about SHRM members.

1) Encourage applicants with disabilities, and minimize needless discrimination in the pre-employment process

Approximately 34 percent of men and 35 per­cent of women with disabilities in the United States were employed during 1999, compared to 95 percent of men and 82 percent of women without disabilities.3 Although the ADA does not require affirmative action, as the Reha­bilitation Act does for federal contractors of $10,000 or more and for recipients of federal funds, these statistics affirm that people with disabilities remain a largely untapped labor pool. HR professionals can encourage and facilitate application by individuals with dis­abilities for open positions by making sure that local agencies that provide vocational rehabilitation services are aware of job open­ings. Some of these agencies are state voca­tional rehabilitation agencies (listed in the yellow pages of your phone book), supported employment or community rehabilitation pro­grams, one-stop or workforce state investment centers, and others.

 

HR professionals can also help individuals with disabilities to enter the workforce by minimizing needless screening-out of people with disabilities via pre-employment screen­ing and testing. Job applications and job in­terviews should include neither medical or disability-related inquiries, nor inquiries about prior workers’ compensation claims; indeed, the ADA bans such inquiries before a condi­tional job offer is made. Any pre-employment medical screening must occur post-offer, and other pre-employment screening that does oc­cur should be consistent with actual job needs and business necessity. In addition, the recruitment, application, and interview processes must be made accessible to candidates with mobility, visual, and hear­ing disabilities. Having recruitment materials and application forms in alternate formats and knowing where to access sign language interpreters in your community are examples of good preparation for access. Further infor­mation about pre-employment screening and pre-employment testing is available in other brochures in this series.

2) Review all employment process policies, procedures, and forms for disability discrimination and access considerations

The recruitment and applicant screening process is a good first place to start your as­sessment of the organization’s policies and procedures in regard to effective outreach to people with disabilities, and minimizing barri­ers in the application and screening processes. The ADA applies throughout the employment process, however, and HR professionals must therefore scrutinize the entire employment process with disability nondiscrimination in mind. For example, benefits programs, such as medical and hospitalization, accident, life insurance, retirement, and workers’ compensa­tion programs should be examined to assure equity for persons with disabilities in these plans. Although employers can use actuarial data as approved by their state insurance boards, disability-specific exclusions or limita­tions are prohibited.

 

Equitable access to other benefits of employ­ment, such as use of the cafeteria, in-house or contracted sports facilities for employee use, and other periodic recreational and social activities should also be examined for accessi­bility to employees with disabilities. It should be determined whether facilities are accessible to individuals who are mobility-impaired, and whether appropriate signage is in place for persons with visual impairments. Employee training and other career develop­ment opportunities must be equitably avail­able to the organization’s employees with disabilities. Opportunities for advancement should be made available to all employees, and facilities and training approaches must be examined to ensure accessibility for employees with disabilities. Are web sites or print train­ing announcements accessible to persons with visual and hearing impairments? Are training facilities wheelchair accessible, and are train­ing materials available in alternate formats (large print, disk/CD, flash drive, audio-tape and/or Braille)?

Similarly, grievance, lay-off, termination, and discharge processes should be examined to en­sure that individuals with disabilities are not disparately treated in these processes.

3) Create an organizational structure to support the accommodation process

The EEOC encourages an informal, interactive process between the employee and the rep­resentative of the organization to determine reasonable accommodations. The organiza­tional representative may be the supervisor, the HR professional, or another person. Al­though an individual seeking accommodation may initially approach only his or her super­visor, the accommodation process often is a multi-level problem-solving process that may involve many other members of the organiza­tion. In the Cornell University study of SHRM members, about one-quarter of respondents said that the HR person alone made the final decision about accommodations, while an ad­ditional ten percent said that the HR person was involved with other managers in making the decision.

 

Because an inquiry often will go to the su­pervisor, it is imperative that supervisors are aware of their organization’s accommodation decision-making process. HR professionals should educate them about the accommoda­tion requirements of the ADA, and let them know that the HR professional is available to assist in the problem-solving process. HR professionals can also point supervisors to resources to assist in determining what accom­modations will effectively meet the needs of the individual. These may be resources within the organization or within the community at large, including ergonomists, health and safety professionals, or employee assistance profes­sionals. In addition, if there is a cost involved with the accommodation, and the individual business unit is not able to meet that cost, a central office may be the place where addition­al assistance can be sought to help with financ­ing a particular accommodation.

4) Organizational tracking and recording of accommodations

Although the ADA does not mandate data col­lection regarding accommodations, it can be useful for organizations to put an accommoda­tion-tracking mechanism in place. This allows the organization to document its good faith effort to respond to accommodation requests from its personnel. Furthermore, it will build its institutional memory of effective accommo­dations for particular job categories and dis­ability issues.

 

Almost half of the SHRM/Cornell survey respondents indicated that their organizations keep data on the accommodations made for employees with disabilities so that they will have information for future accommodations in similar situations. About one-third of re­spondents also keep data to fulfill reporting requirements for other regulations, for use in dispute resolution, and for tracking accommo­dation costs. About a third of respondents said their organizations do not keep data on the provision of accommodations.

5) Top management commitment to disability nondiscrimination

No significant organizational change occurs without top-down commitment from organi­zational leadership. Similarly, to ensure effec­tive recruitment, hiring, integration, and ac­commodation of individuals with disabilities, top management must affirm and effectively communicate the importance of recruiting and retaining individuals with disabilities. This can be part of a message about the importance of diversity, which should be made explicit to engage the administrative and supervisory structure of the organization in assisting with this effort. Conveying that top leadership sees this as not only a compliance issue, but also as good business, sends the right message and can positively impact workplace compliance with the ADA. In the Cornell University study of SHRM members, high-level management commitment was seen as the most effective way to minimize continuing barriers for peo­ple with disabilities in the workplace.

 

6) Clarify position requirements and performance expectations

The ADA does not require employers to have written job descriptions. But properly pre¬pared job descriptions are critical in effective performance management. Accurate job de¬scriptions are a tool to effectively recruit and retain good employees, including those with disabilities. Job descriptions are a road map for supervisors, interviewers, medical staff, and even applicants and employees through¬out the employment process. Prior to recruitment and posting, organiza¬tions should prepare a job description identi¬fying the current essential functions of the job being filled. They should distribute copies to applicants, so that any need for accommoda¬tion can be identified and addressed. Once a person has been hired, job descriptions can also be used to clarify performance expec¬tations. Persons with disabilities can be held to the same performance standards as others in the job category, but necessary reasonable accommodations must be provided, unless it would be an undue hardship to do so.

 

7) Provide training and continuing communication on ADA requirements

Training is key. Training is important at all levels of the organization. Not just interview­ers. Not just hiring supervisors or administra­tors, but all employees. Why? The ADA isn’t just a law to provide equal access to individu­als with disabilities. It’s also about sensitivity, about looking at our behaviors and attitudes to determine whether we may be part of the problem in ensuring equal access. This allows us to make sure we are part of the solution in providing equal employment opportunity.

 

SHRM membership respondents in the Cor­nell study reported conducting extensive training for their HR professionals, but signifi­cantly less training for supervisors in business organizations. To be truly effective, disability nondiscrimination training must reach to the supervisory level to inform supervisors of their responsibilities under the ADA. Use­ful training topics include: confidentiality requirements of medical information, nondis­crimination in the disciplinary or termination processes, nondiscriminatory recruitment and hiring practices defining essential job func­tions, and the accommodation process. Further information on training and the ADA is found in another brochure in this series.

8) If in a unionized environment, involve your union representatives

The union can play a role in helping an indi­vidual with a disability to get the accommoda­tion he or she needs to perform effectively in the workplace. Your unions are also subject to the ADA regulations. You will want to work closely with them to ensure there is flexibility in the contracts to allow accommodations to be made, if appropriate. Regulations implement­ing the ADA suggest that the terms and condi­tions of a collective bargaining agreement may be used as a factor in determining whether an accommodation would be an undue hard­ship. However, you will want to look at all the factors and focus on good faith efforts with the union. The key is to focus on the joint legal obligation to ensure that an employee with a disability gets a necessary reasonable accom­modation.

 

In the SHRM/Cornell study, respondents indicated that unions could contribute to the accommodation process in the following ways: providing representation in reasonable accom­modation discussions, providing advice or information on ways to accommodate employ­ees with disabilities, providing representation in grievance discussions when accommoda­tion requests are denied, and consulting with employers on revising employment policies. Unions also provided information on the rights of employees with disabilities.

9) Use your disability management and diversity programs to support ADA compliance

Respondents in the Cornell University study reported that one of the areas where they made the most effort to make changes in response to the ADA was co-worker and supervisor attitudes towards people with disabilities. This was also seen as one of the most difficult areas to change. This feedback from SHRM members suggests that attitu­dinal issues continue to be a problem in the workplace for people with disabilities, and that continuing attention should be directed toward addressing attitudinal barriers. Diver­sity programs may be an area where sensitiv­ity training or disability awareness training can occur. Again, affirming the organization’s commitment to hiring and retaining individu­als with disabilities in the workforce, as well as raising awareness of disability etiquette, can effectively assist in dealing with attitudinal issues in the workplace about people with dis­abilities.

 

If your organization has a disability manage­ment or return-to-work program, this can be an area that supports ADA compliance. The structure and requirements of such programs lend themselves to increasing awareness of the importance of confidentiality, raising acceptance of people with disabilities in the workplace, increasing supervisor awareness of reasonable accommodation requirements, and creating an organizational structure for accom­modations. The value of disability manage­ment programs in supporting ADA good prac­tice was also shown by the Cornell University Study of SHRM Membership.

10) Use internal and community resources to address accommodation needs

There are numerous individuals who, be­cause of their role or their particular expertise, should be identified and engaged in the orga­nization’s overall accommodation process. Al­though the decision about an accommodation is unique to the individual, their disability, and the nature of their job, there are numer­ous resources that may be used for each indi­vidual’s situation. Some of the specific experts that can contribute to identification of the most appropriate accommodation for a particular disability are ergonomists, physical therapists, occupational therapists, health and safety professionals, and employee assistance profes­sionals. These are often individuals who are working within larger organizations whose expertise can be applied to the accommoda­tion process as needed. In addition, benefits specialists and labor relations representatives may also be able to assist with a particular accommodation request. Identifying these individuals, and bringing them together on a regular basis to build a sense of the cultural appropriateness of accommodation and the importance of working together to generate positive outcomes is an important part of an effective accommodation process within an organization.

 

In addition to the above-noted resources that may be found internally in any medium-sized and larger business settings, there are many community resources that can assist in the clarification and identification of accommo­dations for persons with specific disabilities. State vocational rehabilitation agencies have vocational counselors that can be of assistance, and in some cases can help with financing ac­commodations that are beyond the resources of the employer or the specific needs of the employment setting. In addition community centers for independent living can assist with accommodation inquiries that relate to facil­ity accessibility or assistive technology, as well as helping the individual with personal needs such as housing and transportation. Many of these organizations are listed in the yellow pages of the phone book.

Conclusion

Implementation of the ADA program for your organization will take time and effort. But tak­ing a proactive approach to outline your plan is much more effective than reacting later to specific issues or problems. You can take the cautious approach, the insightful approach, or the visionary approach. If employers are sensitive and programmatic in their imple­mentation philosophy and plan, we will start to make some strides in equal employment op­portunity for all individuals, including those with disabilities.

 

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