No employer wants to get on the wrong side of the EEOC and ADA, given the potential legal and financial consequences of running afoul of employment regulations. However, compliance is not always easy to define given the ambiguity present in some areas of these regulations.
Expectations for return to work, for instance, are an area that many employers find confusing. So what do employers need to know as they work to make return to work decisions that are fair and reasonable – both for their companies and for the employees who have suffered the effects of injuries or illnesses?
A September 2015 press release distributed by the EEOC offers some valuable insight into that question. The press release details the results of a discrimination lawsuit filed by the EEOC against a Tuscon-area trucking company, an employer who, according to the EEOC, missed the mark in terms of compliance with EEOC and ADA return to work expectations in a number of incidences by denying reasonable accommodations to a class of individuals with disabilities.
Not only did the employer deny requests for unpaid leave in excess of the 12 weeks as required under the Family Medical Leave Act (FMLA), but they also denied applications for transfers to open positions for which employees needing accommodation were qualified to perform. The EEOC stated that the conduct alleged in this case violated the ADA. In the settlement of this lawsuit, the company was required to pay $300,000 to disabled employees and to take a number of additional actions to bring its return to work process into compliance with EEOC and ADA expectations – actions that other employers can use as guidance for their own policies and practices. These include:
- Hiring neutral, outside consultants to ensure compliance with the ADA for return to work policies as a positive step toward objectivity and fairness.
- Eliminating policies that require employees to return to work with no medical restrictions.
- Eliminating policies that do not allow for consideration of leaves of absence, extended time off, light duty, or reassignment as reasonable accommodations for individuals with disabilities.
- Training their employees, including C-Suite and human resources professionals, on the ADA every year.
- Instituting an evaluation system for supervisors and managers regarding their compliance with EEOC regulations.
In the press release, the EEOC stresses that blanket policies for the return to work process requiring disabled employees to be 100 percent recovered before re-entering the workforce violate the law. Since these employers were not conducting objective individualized evaluations to explore reasonable accommodation, they may have been overlooking many opportunities to allow disabled employees to return to work.
What this means for employers is that assessing the capability of these employees – individually – is important for compliance. An accurate and objective assessment begins with a detailed job demands analysis or, at minimum, a clear understanding of the actual physical requirements of the job. The next step is performing physical ability testing (PAT) to assess employees’ ability to perform the essential functions of the job. If a returning employee is not ready to return to full duty, according to the PAT, the test results can then be used to formulate a transitional duty plan, identifying whether suitable light duty positions are available in the workplace.
While these types of evaluations can offer a great deal of help in terms of compliance with EEOC and ADA expectations, it is important to choose a provider who uses science-based, validated testing methods to assess employees. Additionally, choosing a vendor with expertise in federal regulation compliance is essential as well – one who can provide training in ADA for C-Suite and HR along with a solid, legally defensible testing program.