As an HR consultant, I work with a lot of organizations across many industry sectors. However, one common denominator is that all of these organizations’ HR teams seem to struggle with managing ADA cases today. Since the amendment of the ADA several years ago, the number of accommodation requests coming across HR’s desk has increased dramatically. The reason is that so many more employees are able to meet the requirements of a “qualified individual with a disability” under the ADA.
What is so tricky about providing reasonable accommodations is in establishing a precedent, making it difficult to navigate future requests from other employees. Here is an example that I will use, which is taken abstractly from a recent case in the news:
Military veteran, former Marine, diagnosed with Post Traumatic Stress Disorder (PTSD). He must take medication and he now has the benefit of a service dog, a Labrador Retriever, who enables him to reduce his anxiety and remain calm in stressful situations. The issue that came up in the news, however, was that his employer had denied his request to permit the service dog in the workplace. I took notice as to how journalists demonized the employer in a “how dare you!” tone of voice, denying a veteran his service dog.
Now, for people who don’t know me, I’m married to a 35-year veteran of the Army Reserves. My dear husband, Ken, is a retired Sergeant Major. And, I am the owner of not just one, but three, Labrador Retrievers and have had many of them over the years, as I just love them. However, with that said, I need to address the issue of what is reasonable–or unreasonable when it comes to complying with the ADA.
For starters, just because an employee requests a reasonable accommodation, it doesn’t mean the employer is immediately obligated to comply. What has to happen first is that once the employee discloses that he/she may need an accommodation, at that point the employer can begin to make medically related inquiries. A best practice is to work collaboratively with legal counsel to develop a document that the employee can take to his/her doctor to capture the specific details regarding the impairment(s), severity of the impairment(s), and the barriers the employee has to working. Once that is accomplished, the next step is to have a back and forth conversation with the employee, called the interactive discussion, to identify some reasonable accommodations to help the employee perform the essential functions of his/her job.
Now, back to our veteran… evidently, his job required him to be in a field position, working as a telecommunications technician. Now, I don’t know the full details of his job description; however, I can speculate that as part of his essential job functions he needed to be dispatched to customer’s homes and businesses to repair telephone service. Again, being the veteran lover and dog lover that I am, I’d want to do what I could to help the veteran. However, from a practical standpoint, can a telecommunications company allow an employee to travel with his dog, on every service call, to every customer’s home or business? Well, the decision making has to rest with the HR team and operations managers to really identify the feasibility of that. Having done some work with a non-profit that trains Labradors to help individuals with disabilities, I can tell you that those dogs are extremely well trained and well behaved. If this veteran/telecom technician were to have to perform his duties with his service dog by his side, he may very well be able to do it if the dog is so well trained and there is no risk of the dog biting a customer. The issue is whether or not it would create an issue going into homes or businesses. The issue could come up that some customers are allergic to dogs, and some businesses just may not allow animals due to health codes.
From my perspective, the issue with this sticky accommodation situation is really more about how this decision affects FUTURE accommodation decisions. Lets assume that the telecom company granted this veteran’s request to allow him to work with his Labrador Retriever service dog every day. What happens when the next employee, and the next, and the next one after that request an accommodation to permit a service dog at work? The organization could potentially face claims of discrimination under the ADA as under Title VII of the Civil Rights Act. If, let’s say employee #2, six months from now, wants to bring her Yorkie to work because she suffers from PTSD–what if the company denies her request? She can then claim that the Marine veteran (who is male) was granted a service dog accommodation–but she was not. She can then claim that the company made a different decision in her case, simply because she is female.
So, this veteran-service dog-accommodation scenario is just not one of those easy-answer type of ADA cases. Some are no-brainers…employee who is legally blind, but still has some vision, request a magnification filter for his computer screen so he can perform his job duties. Easy peasy. Problem is, the more complex cases like this one involving the veteran with PTSD is a lot of what HR faces today. These are difficult cases, as I don’t think anyone in the HR profession would want to purposefully deny a veteran the ability to work or deny a veteran an accommodation that could help him/her to live a more fulfilling life. However, what HR and organizations must balance today is the decision made today and how it affects the decisions of tomorrow. The bottom line is this: the standard for an accommodation being unreasonable is pretty high. So, if an organization is going to deny a reasonable accommodation, it better be darn sure the reasons can support an undue hardship. As without being able to prove the undue hardship, the result will be at the very least an EEOC charge of discrimination for having violated the ADA.
For help with your ADA cases or other HR issues, just email me at Natalie@rpchr.com or give us a call at (800) 517-7129.