Some Possible “Gray Areas” in Complying with the ADA
The ADA has been around for a long time, but it is still a complex piece of legislation with a number of areas that are not always clearly understood. Following are some relevant facts:
The nature of an employer (e.g., for-profit, nonprofit, charitable, etc.) does not exempt that employer from the ADA.
Communication is critical. Misunderstandings can happen, but in circumstances such as those involved in the ADA, they can be very damaging to the employer. Employers must make sure to document all interactions with employees that pertain to any possible ADA accommodation claim. This would be critical to the employer’s defense if legal actions were ever involved.
In line with the above, employers must refrain from making assumptions. If an employee appears to have an injury or impediment (e.g., limping, appearing to have a backache) that is potentially affecting their work, the employer is obligated under the ADA to start an interactive process. That process may or may not result in the need for an accommodation, but it must be documented for the protection of both the employer and the employee.
If an employee’s condition affects their ability to perform an important part of their regular job, especially if no practical accommodation is available, the employer can broach the subject but should do so from the standpoint of trying to find a means of assisting (accommodating) the employee, rather than appearing to look for a way to deactivate – or even terminate – them.
The above approach should also be used in a case where the employee – during accommodation discussions – mentions an additional condition that might also affect their ability to perform their work, that should also be approached from the standpoint of trying to help accommodate the employee. Again, all such discussions should be documented.
Whether or not working from home is a reasonable accommodation depends upon the nature of the job.
It is the employer’s responsibility to protect the confidentiality of the employee. If other employees ask about an accommodation, the existence of an accommodation can be revealed, but the reason for the accommodation is not to be divulged. Doing so could subject the employer to legal action.
