ADA Reasonable Accommodation definition changes in 2009: Impact on Employers
Last Friday I delivered a presentation on Remote Work to a group of high level, HR decision makers. The presentation was developed as a tool to help these Human Resources Directors and VP’s assess their current Remote Work program and shed light on what needs to be considered. After the presentation I got into a discussion with one of the participants on the American’s with Disabilities Act (ADA) and its changes in 2009. More specifically we discussed the changes in regards to a Telework/Telecommuting program. Realizing that many do not know about this, I thought it perfect information for my audience.
The question I was asked mirrored a question on the ADA’s site, “May permitting an employee to work at home be a reasonable accommodation, even if the employer has no telework program?” And the answer, “Yes. Changing the location where work is performed may fall under the ADA’s reasonable accommodation requirement of modifying workplace policies, even if the employer does not allow other employees to telework.” Now this accommodation has been around for awhile, so why should employer’s take more notice now?
Because Congress has just changed the definition for what can be considered a disability. These are the main changes to the new definition.
- Mitigation measures, like medication or other aids, can no longer be taken into account in determining whether an employee has a disability, except for eyeglasses or contact lenses.
- The Supreme Court’s interpretation of a “demanding standard” for qualifying as disabled has been replaced with an approach that’s “in favor of broad coverage.”
- A longer and non-exhaustive list of “major life activities,” including reading, learning, concentrating, thinking, communicating, and major bodily functions will now be applied by the courts.
According to many employment attorney’s I have spoken with, these changes now broadly favor the employee over the employer. (A main reason for this was that previously 97% of ADA claims were lost by the employee. Congress saw this as unfair and worked to rewrite the definition.)
For those employer’s without Telework policies, you may need to consider having at least something prepared in case a request is made. As technology continues to advance, more and more jobs are able to be done from home. What will happen if you have an unproductive employee suddenly demanding to work-from-home or Telework as a means of a reasonable accommodation? Do you have strong enough polices in place to either prevent the wrong people from applying or support they need in order to be successful with the arrangement?
For more information on Telecommuting and Remote Work, please read some of my other posts. Got a question? Send me an email to the below address.