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2023 Americans with Disabilities Issue

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September-October 2023

Ongoing challenges with Americans with Disabilities Act (ADA) compliance highlight the need for and value of education and training. And passage of the Pregnant Workers Fairness Act (PWFA), which mirrors some but not all of the ADA requirements, makes it even more important for employers to ensure compliance and support employees. This issue includes insights into the differences between the ADA and PWFA, ways employers can encourage stay-at-work options and faster return to work for employees, and guidance for getting to a “yes” with all types of accommodation requests.

The CEO's Desk

The Interactive Process

Although the ADA turned 33 this year, it continues to challenge employers. While it can be frustrating, we have compelling reasons to invest more time and energy in this area to ensure that our policies and procedures include a consistent interactive process that helps employers find ways to support employees in need.

Are Job Transfers Reasonable Accommodations Under the ADA and PWFA?

Under the Americans with Disabilities Act (ADA) and the Pregnant Workers Fairness Act (PWFA), a transfer or reassignment to a new job can be a reasonable accommodation. Employers may forget about this accommodation option — or may not be interested in discussing it — which can create a significant risk of liability.

Employers Can Help Employees with Traumatic Brain Injuries Return to Work

More than 27 million cases of traumatic brain injury (TBI), a category that includes falls, motor vehicle crashes, and sports injuries, occur globally every year.1 Described as a silent epidemic, the injuries can be difficult to manage due to complex coding that affects claims and an outdated approach that may delay an employee’s return to work. While the data is daunting, there are things employers can do to prevent TBIs and support employees.

Spotlight Articles

Expanded Perspectives:
@Work To Share

DMEC provides the following @Work magazine articles and podcast episodes to offer additional perspectives on and increase awareness of integrated absence management trends and challenges. The resources — available to members and nonmembers — can be shared with your colleagues and through social media channels.

DMEC Podcast

Can Restricted Duty Help Employees Return to Work Sooner?

Unanswered questions and confusion about restricted duty (who is eligible, when should it be recommended, and what an employer’s responsibilities are) can delay an employee’s return to work, says Tracie DeFreitas, a program leader and director of training, services, and outreach for the Job Accommodation Network. Get insights and perspectives in this episode!

Listen in

Emphasizing the Human Connection in Absence and Disability Management

Hundreds of absence and disability management professionals attended the 2023 DMEC Annual Conference in August to learn about best practices and collaborate on solutions to shared challenges. They left with renewed energy, new contacts, and valuable resources to support employees during emotional times.

Using Process as a Buffer for Emotional Disability Discussions

Strong absence and disability management processes empower employers and help support employees during emotional times, explains Rachel Shaw, president/principal consultant, Shaw HR Consulting. Data can provide a life vest during emotional discussions when employees seek accommodations for disabilities and performance issues muddy the waters.

Listen in

Employers Can Help Employees with Traumatic Brain Injuries Return to Work

The absence management world changed on June 27, 2023, when the Pregnant Workers Fairness Act (PWFA) went into effect. And it’s a game-changer. The law (H.R. 1065)1 was included in the 2022 year-end federal omnibus legislation. The Equal Employment Opportunity Commission (EEOC) released draft regulations on Aug. 11, and an open comment period for the public to submit comments to the proposed regulations ends on Oct. 11, 2023.

Celebrating Leadership in Absence and Disability Management Circles

How do you define leadership? Ashleigh Brock, JD, and Keemia Vaghef, PhD, winners of the 2023 DMEC Emerging Leader Award, share thoughts on leadership, programs and approaches they designed to enhance absence and disability management processes, and what they advise other emerging leaders to consider.

“Record-Scratch” Moments from the 2023 DMEC Annual Conference

From inspiring keynote speakers to breaking news about psychedelic drugs to treat mental illness, and important reminders about the meaningful work absence managers do, hear what resonated with Bryon Bass, CLMS, incoming DMEC CEO; Kristin Jones, CLMS, DMEC director of education; and Jess Dudley, CLMS, DMEC education manager, at the 2023 DMEC Annual Conference.

Listen in

Columns

Absence Matters

The Best of Both Worlds

Many employers were forced to shift jobs to work-at-home models at the onset of the pandemic.1 Not surprisingly, one of the results of this change was fewer job accommodation requests. In fact, some employers saw a 32% decrease in accommodation incident rates from 2019 to 2020, and it stayed relatively flat through 2021.

Integrated Absence Management

The ADA and the Interactive Process

The Americans with Disabilities Act (ADA)1 requires employers with 15 or more employees to provide reasonable accommodation(s) to employees with disabilities. The Equal Employment Opportunity Commission (EEOC) recommends engaging in an informal or interactive process2 to understand employee needs and identify a reasonable accommodation. Each employee has unique requests, needs, and experiences, which is why workplace accommodations never have a one-size-fits-all solution. A well-defined and broadly communicated internal process supports workplace accommodations and helps employees advocate for themselves.

Engaging Today’s Workforce

The Impact of the ADA and the Pregnant Workers Fairness Act

A recent report shows that 21.3% of people with a disability were employed in 2022 and when you dig deeper, the report includes positive news for people with disabilities who are of working age. For employers, ensuring this employee cohort has equal access to employment opportunities is required under the Americans with Disabilities Act (ADA), which protects employees against discrimination at every stage of employment — from recruitment and training to pay.

Employer Solutions

Tapping the Right Resources for ADA Accommodations

Workplace accommodations can be as unique as the employees who need them. And resources to help employees stay at work and support employers in staying compliant with the Americans with Disabilities Act (ADA) may be closer than you think. The key is to review the basics and ensure widespread understanding.

Common Sense Compliance

Avoiding ADA Liability and Lawsuits

Employers often underestimate the risk of noncompliance with the Americans with Disabilities Act (ADA). Yet the most substantial verdicts are awarded in cases with ADA violations. Under the ADA, employees can recover damages for emotional distress caused by an employer’s failure to comply with the law. It is not unusual for these awards to be hundreds of thousands of dollars. Additionally, juries can award punitive damages if they believe an employer acted with reckless disregard of an employee’s rights.

Featured Case

Repeated Extension Requests

You have a long-term employee who is a high-performer with impeccable attendance. On June 6, he was in a car accident and sustained serious injuries. He provided a doctor’s letter with a request for six weeks of leave with a return-to-work date of July 18. On July 16, the employee provides another doctor’s note requesting an additional six-week extension due to his medical condition. This pattern continues for more than 10 months. He exhausts federal Family and Medical Leave Act (FMLA) and state-mandated leave, and still has not returned to work.

Leave Technology

Improve Your ADA and Accommodations Processes

When an employee makes a request for accommodations under the Americans with Disabilities Act, the interactive process required by the Equal Employment Opportunity Commission can be difficult to manage. Technology can help with some of the more challenging parts of the process — from staying compliant to improving employee engagement and retention.

The Disabled Workforce

Reasonable Accommodation Evaluation Tips

Can an employer accommodate a custodian who has a no heavy lifting restriction if the essential job functions include taking out trash, vacuuming, mopping, and moving furniture? To get to a yes in this situation, employers need more information. What one person considers heavy lifting might not be heavy for another, which is why individual assessments are not only required but also helpful for creating understanding between the employee and employer. Employers need to understand what “heavy” means for the employee and should clarify other vague work restrictions, such as “repetitive” or “forceful.”

@Work

Editorial Staff

Editor: Heather Grimshaw
Editorial Advisory Group Members: Linda Croushore, Rebecca Fisco, Jenny Haykin, Terri Morris, Fred Schott, Jessica Thornton, and Lori Vickory

Editorial Policy

The goal of @Work is to present industry and Association news, highlight member achievements, and promote the exchange of specialized professional information. The statements and opinions expressed herein are those of the individual authors and do not necessarily represent the views of the Association, its staff, board of directors, or its editors. Likewise, the appearance of advertisers does not constitute an endorsement of products or services featured in this, past, or subsequent issues of this publication. DMEC makes no representations, warranties, or assurances as to accuracy of the information contained in the articles, and no content herein is legal or tax advice. Consult appropriate professionals for legal or tax advice.

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2023 Americans with Disabilities Issue

September-October 2023

The CEO's Desk

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