Employers: If You Want to Re-Open, Study the ADA First

The new uniform at work?

We all want to get back to work. Safely. But there are CDC Guidelines, and then there is reality.* And the reality is, at a minimum, do not re-open until you understand the Americans with Disabilities Act (ADA). Here’s why:

  • Responding to many of your employees’ concerns regarding a safe return to work will track the reasonable accommodations framework set out by the ADA. So if you don’t know this framework, or if you’ve only got one person at your company who marginally handles this function, you could run into trouble and fast.
  • Employees who are immuno-compromised (or who live with people who are) probably didn’t need a reasonable accommodation before the pandemic. But now they will. This means requests for reasonable accommodation at your company just went up — and likely by a lot.

Here’s a 30,000 foot view on the process:

  1. An employee makes a request for a reasonable accommodation (it doesn’t need to be in writing, and it doesn’t need to be to a designated person).
  2. A request for a reasonable accommodation doesn’t have to use magic words like: reasonable accommodation, or disability. Employers must know how to read between the lines.
  3. Engage in the interactive process (translation: talk to the person, find out what they’re asking for, and how this will enable them to perform the essential functions of their position). This may or may not require medical documentation. If you think it does, make sure you apply that thinking consistently, and follow applicable confidentiality rules.
  4. When considering whether someone is “disabled”, remember, our current environment is re-writing that definition on a nearly daily basis.
  5. When considering what is a “reasonable” accommodation, remember, our current environment is re-writing the definition of that as well. (Pre-pandemic, many employers denied requests for accommodations like working from home, or in separate cubicles, or on staggered shifts. Denying these requests now could prove to be very costly.)
  6. Make sure you document your processes, and that ALL of this is kept confidentially, not mixed up with personnel files. Things will be moving fast. But if you violate employee privacy rights, that bell can’t be un-rung.

Pro-tip to Employers: Now is a really good time to require all of your managers and Human Resource professionals to take refresher training on the ADA. The CDC guidelines are only useful if we actually have access to testing (and most places don’t). But the ADA gives us an actionable framework to ensure a safe and compassionate return to productivity.

*Reality check: widespread testing, the true first step to safely re-opening our economy, is currently not available. Date of this article is April 25, 2020.

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Josh Klipp is an attorney, Certified Access Specialist and founder of Made Welcome, a consultancy specializing in access strategies for workplaces and events.

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Joshua Klipp

Joshua Klipp

Josh Klipp is an attorney, Certified Access Specialist and founder of Made Welcome, a consultancy specializing in access strategies for workplaces and events.

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