The Americans with Disabilities Act (ADA) is intended to make life easier for people with disabilities. It doesn’t always go that way — immediately after the law went into effect, employment for disabled individuals dropped. Companies were scared they would have to provide expensive accommodations.
Don’t be scared about the accommodations — the law requires that they be reasonable. (You don’t have to create a quiet space for your disco’s bartender with migraines.) Be worried instead about being sued.
ADA lawsuits are on the rise — with more than 10 times the lawsuits of 10 years ago in some places. While many of these are about building structures and shelf placement, you need to be worried about employment cases as well. Here’s how you can protect your business against ADA lawsuits from employees and job candidates.
Work with an employment attorney.
People think it’s expensive to hire an attorney. It is. But hiring one to keep you out of messes is much, much cheaper than hiring one to get you out of a mess. An employment attorney can help you set up policies and give advice when you’re unsure. I promise it’s cheaper than guessing and guessing wrong.
Have HR or the employment attorney train all your managers on ADA.
That may seem like a lot — why have HR and an employment attorney on speed dial if you’re going to train people anyway? Because, without training, how will you know to pick up the phone and call HR or the attorney? What you might see as a casual conversation, an expert will see as an ADA request.
For instance, a man in Kentucky requested that his company not throw a birthday party for him. The company went ahead anyway and held a party. The man had a panic attack and left. Because he didn’t specify that this request was for mental health reasons, it would have likely gone away if the company had apologized and not done it again.
Instead, they doubled down. Brought him into a meeting, questioned him, inducing a second panic attack. Then they fired him when he tried to get it under control, claiming safety reasons. He won $450,000 in a lawsuit against the company.
Someone trained in ADA would have realized that this was a mental health issue when he had the first panic attack. The company could have salvaged the relationship with the employee and skipped the lawsuit. All it takes is one person to recognize, “Hey, this is about a disability!” and then contact the appropriate person. You don’t need to train your managers to handle ADA requests or situations — just recognize them.
Here are some other times when ADA has come into play — situations that you might miss if you’re not aware.
An employee says he’s allergic to certain chemicals and asks for a fragrance-free workplace. Cost to the company? $3 million. A police officer has dyslexia and ADHD, which his superiors admitted to knowing. They fired him and claimed that since he hadn’t explicitly requested an accommodation, that didn’t play into it. They lost to the tune of $3.7 million. An employee with epilepsy wants to work overtime but is on light duty. Company policy was no overtime for people on light duty, even though the employee’s doctor was okay with it. Ultimately, the company paid out $850,00.Just train your managers to recognize that anything health-related needs to be flagged. Let an expert make the decision.
Always go through the interactive process.
Under ADA, an employee doesn’t get to make demands. The employee and the company work together to develop a reasonable solution. It’s called the “interactive process” because it’s a back-and-forth.
Come in with an attitude of “we’re here to find a solution” and not “how can we avoid an accommodation.” Take the time to understand what your employee needs to succeed. Chances are, it will be simple.
If you follow these steps, your chances of running afoul of the ADA are slim. Work with your employees to make your business a place where you include everyone.
