ADA Accommodation Basics

Don't let confusion around accommodation requests derail your hospital's personnel management strategy. Here are some common questions about workplace accommodations—and answers provided by an attorney.

Few duties are as anxiety-inducing as confronting an underperforming employee about behavioral or performance issues—except when that employee responds by saying they have a disability or health issue and asks for accommodation.

Even veteran HR leaders find disability accommodations to be a challenging, full of potential for missteps, misunderstandings, and abuse.

It helps to have access to a lawyer who can help guide you through the process. I talked with Heather Owen, a labor and employment lawyer with Constangy, Brooks, Smith & Prophete, LLP, which is headquartered in Atlanta. The transcript below has been edited for brevity and clarity.

HealthLeaders Media: What are some common accommodations healthcare employees ask for under the ADA?

Heather Owen: In my experience, the most common accommodations revolve around back injuries, like restrictions on lifting less than a certain number of pounds or reaching over head.

A close second is time off as an accommodation. The Family and Medical Leave Act (FMLA) is pretty easy to deal with regarding time off, and everybody knows that they have to give time for FMLA purposes, but when it's exhausted or not available, attendance flexibility is one of the most common accommodation issues.

Of course, my perception may be a bit skewed, as it's related to what I get called to work on. In healthcare, those two are the toughest to deal with. Most healthcare jobs are very physical, and there are a fair number of back or strain injuries that are long term.

HLM: What are common sources of confusion around accommodation requests?

Owen: More often than not, it's not quite clear cut. I had a case in litigation recently where an employee claimed that telling their supervisor that they were "having a difficult time" and needed more time to get tasks done was a request for an accommodation. The employer certainly disagreed that this was a request for an accommodation.

HLM: Can you describe the process for triggering an accommodation? And what should a supervisor do if an employee seems to be having performance problems that could potentially be caused by an illness or disability?

Owen: There as two ways to trigger the interactive process of accommodation. The more obvious is where the employee has brought their health issue to the employer's attention and is requesting some sort of change in their workplace situation to help them deal with it—a fairly direct request for accommodation.

The second is where the supervisor may recognize that the employee is having a problem: it may be attendance, work, productivity, or something else of that nature— and the supervisor should have reason to believe that there is a health condition contributing to the problem.

The example we often give is someone who has been a good employee for many years, but suddenly starts having productivity or attendance issues, and their demeanor changes at work. A manager might not know why exactly, but they usually know something is going on.

Give Nurses in Wheelchairs a Chance

You don't want to go up to this employee and ask, 'Is your health OK?' But I do encourage that you be prepared when addressing performance or behavioral issues to begin engaging in the interactive process. Have a meeting with the employee and say to them, 'I've been noticing X, Y, and Z behaviors. Can you tell me what's going on?'

You've left it very open ended. If the employee doesn't say anything, you did your job. But the employee will usually tell you what's going on. 'I'm under a lot of stress.' 'I've been diagnosed with X.' 'I'm having some difficulty.' And that is a trigger for the employer to discuss what accommodations may be available to help them perform or behave in a more appropriate way.

HLM: Mental health conditions seem to be on the rise. What kinds of accommodations are frequently requested by healthcare employees with mental health conditions, and what do HR leaders need to know about this?

Owen: Mental health is something we deal with a lot. It's difficult to lump mental health together; it covers a wide range of conditions. We've been seeing lots of requests for accommodations around ADD and ADHD. Lots of them have been shift requests. Stuff like, "I can only work day shift because my medication works better if I'm consistent with it, so I can't rotate shifts."

And we get a lot of "I can't do overtime, because my medication wears off," or "I can't work weekends," or "I can't be on-call." For obvious reasons, those restrictions are challenging in healthcare.

We've also had some very serious mental health issues where people have made serious errors that may impact patient care. In those situations we've had to provide leave of absence while the organization researches the situation and resolves it.

Here's an example I've seen: An employee suffered a back injury that had occurred outside of work. He was in pain for an extended period of time, and his organization developed a concern that the employee was taking a lot of pain medication and had become addicted.

Not only was the employee not as productive as he had been, but he began disappearing for long periods of time, saying odd things, and staring at his hands. He was generally engaging in concerning behavior not observed in the past—like staring at his computer screen, appearing mesmerized by the colors. His employer responded by removing him from work, because he just wasn't able to perform.

In these situations, I suggest that the employer write a detailed letter to the employee's healthcare provider along with requesting a fitness for duty evaluation. The typical fitness review form is great, and it asks good questions, but you just don't get the information you need because the healthcare provider sees the patient they've dealt with for years and thinks they're fine without recognizing that a problem has developed.

Describe in factual detail the behaviors that have caused this fitness-for-duty evaluation without mentioning that you suspect addiction or making any diagnosis. Ask that the doctor sign the letter and send it back to you.

This has been very effective. About 50% of the time, we never get the letter back—and then, you have grounds to terminate the employee. You do have to give them a couple of chances to get the fitness-for-duty form in, but many times the employee is never able to complete the request.

HLM: More states are permitting marijuana use to treat medical conditions such as Multiple Sclerosis or PTSD. Have you heard any rumblings about people asking for accommodation around medical marijuana?

Owen: Yes, this has been litigated a couple times now, mostly in district courts. So far, the answer is that it's not a reasonable accommodation to make exception to drug testing policy, as marijuana use is illegal under federal law. It's just not reasonable to ask an employer for an exception to federal law.