A HUMAN RESOURCE PERSPECTIVE ON IMPLEMENTING THE ADA

Web Posted on: December 18, 1997

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How should I go about developing and implementing a plan?

The information presented here focuses on the steps needed to ensure compliance with the ADA. More importantly the information focuses on implementation strategies for the short-term and long-term. The key in any implementation program plan is to maximize employment opportunities for individuals with disabilities. While most of the suggestions might work better in medium-sized or large companies, smaller organizations can develop similar models given their own resources and culture. It may seem that the provided suggestions are expensive, but they need not be. Use the talents, expertise and resources within your organization. Seek out agencies in the community that have additional expertise and are ready to help—often at no expense. Outlined below are the steps to assure ADA compliance:

1. Immerse yourself in ADA literature

You can't read enough, listen enough, or learn enough when preparing you and your organization for legislative compliance. Because the ADA legislation is so comprehensive the only way to understand the impact and the requirements is to read, read and read some more. Not just the regulations and the technical assistance manual provided by EEOC, but handbooks, articles, training guides, etc. While there are a few cases out there now to help you decide if the approach you have taken is on target, you will want to remember that everything you do should be on a case-by-case basis. The more basic background information you have learned, the easier it will be to make good, defendable decisions. It is also important to consult with legal counsel as you develop policies and procedures no matter how well grounded you are.

2. Secure support "from the top."

Now that you are "informed," you need to sell the top administrators in your organization that ADA is alive and well. And that your organization canþt rely on past practices in making good faith efforts to hire individuals with disabilities. Good faith efforts are not enough. Now your efforts must be programmatic, must be concerted, must be coordinated. And to do that, the President, CEO, CFO and/or other top-level administrators must understand the impact of ADA on your organization. You will need to secure their support and authority for the program you develop to succeed.

How do you do that? Meet with them. The best way to sell ADA is to gain support that the ADA is not only legally required for covered employers and a good business decision, but the "right thing to do" ethically and morally.

A centralized approach will be easier to administer ; authority needs to be centralized to ensure consistent application of programs, policies and procedures. When securing top-level administrative support it will be helpful to outline the pros and cons of centralized versus decentralized authority. Legal counsel may be helpful in detailing the impact of noncompliance and inconsistent applications of decisions.

3. Appoint a Task Force and/or hire a Coordinator

You need two things: buy-in and authority. While not required by the ADA, you may want to appoint an organization-wide Task Force. You can then utilize the expertise, ideas and input from staff members at all levels of the organization. Invite individuals with disabilities, members of a collective bargaining agreement, and external customers as "consultants" to the group.

An ADA Coordinator hired to develop and implement the organizationþs program (again not required, but helpful) is further evidence of commitment and support in ensuring compliance with the regulations; and can make implementation and administration easier. If a full-time coordinator is not justified, at minimum identify an ombudsman or intercessor. Employees will then have an internal, informal access point rather than starting their complaint process outside the organization with legal counsel or other third parties.

4. Review policies, procedures, and forms

Certainly your employment policies and procedures should be scrutinized carefully. BNA has published a self-evaluation guide that may be a start (Bureau of National Affairs, Inc., 1991). This guide asks you to look at not only your recruiting and hiring practices (including qualification standards and selection criteria), but your upgrading, promotion, demotion, transfer, layoff, termination and rehiring procedures. You will also want to look at your testing programs and processes. Are your application forms in compliance? Will you invite applicants to request reasonable accommodations? Is your employment office accessible to individuals with disabilities? Do your interviewers know what they can and canþt ask, when they can and canþt ask?

The ADA prohibits an employer from asking an applicant, at the pre-offer stage, about job related injuries or workers’ compensation history. You may require a medical examination and may condition an offer on the results of this examination after an offer of employment is made, but before the individual actually begins work, if all entering employees in the same job category are given an examination regardless of disability. You should also review your recordkeeping requirements and the need for confidentiality of information obtained during the medical examination.

Do you require drug testing? Do your supervisors know what to do when reviewing performance issues for all individuals including those who may have a disability? What is the approach a supervisor should take if he/she does not know the individual may have a disability?

Are your benefits programs (medical, hospital, accident, life insurance, retirement programs) in compliance? What about Workersþ Compensation? (There is a good article, "Shining Light on ADA" you might want to read (Pimental & Lotito, 1992)).

Are lunchrooms, lounges, bathrooms, etc. accessible to all employees? Are your businessþ social and recreation activities made accessible to all employees? Are all your program offerings accessible to all employees?

Your assessment should be complete—when you read information in any of the guides or assistance manuals, write yourself notes and jot down questions. What are we doing now? What should we be doing? What could we be doing?

5. Review job descriptions

ADA does not require employers to have written job descriptions. But most of the literature suggests that properly prepared job descriptions are critical in complying with the regulations. Job descriptions can be a valuable tool in the recruitment, selection, hiring, and accommodation assessments needed for successful programs. Job descriptions are a road map for supervisors, interviewers, medical staff, even applicants and employees throughout the employment process.

The job description should be used prior to recruitment and posting. A copy should be given to applicants. The key is to articulate and understand what the essential functions of the job are. This will help in determining what accommodations can or cannot be made.

6. Develop budget requirements

Yes, implementation of the ADA program will cost you money. But you donþt necessarily need to look at program costs as a burden.

The Job Accommodation Network has compiled information that reinforces the point that job accommodations may not be as cumbersome as some may suspect:

• 31% cost nothing at all
• 19% cost between $1 and $50
• 19% cost between $51 and $500
• 19% cost between $501 and $1000
• 11% cost between $1001 and $5000
• 1% cost more than $5000

It should also be noted that most individuals with disabilities do not require any accommodations. An employer must seek out assistance in paying for accommodations before it can "cry" undue hardship. The employer should work with the individual who needs the accommodation. Many times the applicant or employee already possesses the required accommodation and is willing to use it in the workplace.

When developing a budget it may make sense to centralize funding for accommodations. Supervisors are likely to resist paying for accommodations and may say "it is too expensive." There are many factors developed by the EEOC that only the employer can analyze (not the specific supervisor) when determining "expense" and undue hardship.

7. Develop a process for making accommodations and determining undue hardship

Your process for making accommodations must be on a case-by-case basis but within a structured system for making assessments. The EEOCþs regulations and technical assistance manual provide in-depth information about the process for determining appropriate reasonable accommodations. They recommend a problem-solving approach or process which includes 1) analyzing the particular job (purpose and essential functions), 2) consulting with the individual with the disability and how limitations to his or her ability to perform essential job functions could be overcome with accommodations, 3) identifying potential accommodations (with use of external sources such as JAN, state or local rehabilitation agencies or from disability constituent agencies), 4)considering the preference of the individual, and 5) selecting the accommodation that is most appropriate for both the employee and the employer.

Remember, "employment decisions must be based on the abilities of individual applicants or employees, and not on ... presumptions or generalizations about what individuals with disabilities can or cannot do."* Unlawful activities in making accommodations include restricting the duties of the employee based on þwhatþs bestþ for the employee, having separate tracks for job promotions or progression, physically separating employees in a particular office or area. Be sensitive. Be sensible.

8. Develop training programs and manuals

Training is key. Training is important at all levels of the organization. Not just interviewers. Not just hiring supervisors or administrators. But all employees. Why? ADA isnþt just about a law to provide equal access to individuals with disabilities. Itþs about sensitivity, itþs about looking at our behaviors and attitudes and making us realize we may be part of the problem in ensuring equal access—and making sure we are part of the solution in ensuring equal employment opportunity.

9. Review of collective bargaining agreements

Your unions are also subject to the ADA regulations. You will want to work closely with them to ensure there is flexibility in the contracts to allow accommodations to be made if appropriate. The regulations suggest that the terms and conditions of a collective bargaining agreement may be used as a factor in determining whether an accommodation would be an undue hardship. However, you will want to look at all the factors and focus on good faith efforts with the union. The key is to fulfill the legal obligation to make reasonable accommodations for the employee.

10. Develop and implement a comprehensive communication program

Communication vehicles need to be multi-faceted. Articles in your in-house newsletter wonþt do it. Training manuals for supervisors wonþt do it. You will want to make presentations (invite yourself to department meetings, donþt expect people to come to you). Develop a plan that focuses on before, during and after implementation. Know that communication is ongoing, not just for the first six months after implementation. Like any program, it is only as good as what employees hear and know about the program.

11. Develop evaluation and monitoring tools

Many of the articles and information suggest the need to document, document, document. By documenting what you are doing, you are showing your good faith efforts—appointment of a Task Force, communication of plans for implementation, etc.

You will also want to develop a system for recording not only what accommodations have been made for whom but what attempts were made to make accommodations, including what resources you accessed in your attempts. And a system for indicating when accommodations were not made because of your interpretation of undue hardship.

Documentation and evaluation are important components of any program, including your ADA plan and program components. Make sure your systems are in place early. Logs, files, documentation processes should start as soon as possible, not when you "start" the program.

Conclusion

Implementation of the ADA program for your organization will take time and effort. But taking the time on the front end (a proactive approach) to outline your plan is much more effective than reacting later to specific issues or problems. You can take the cautious approach, the insightful approach or the visionary approach. If employers are sensitive and programmatic in their implementation philosophy and plan, we will start to make some strides in equal employment opportunity for all individuals—those with and those without disabilities.

Resources

ADA Regional Disability and Business Technical Assistance Center Hotline, (800) 949-4232 (voice/TTY).

Equal Employment Opportunity Commission, 1801 L Street, NW, Washington, DC 20507, (800) 669-4000 (Voice) to reach EEOC field offices; for publications call (800) 800-3302 or (800) 669-EEOC (voice/TTY).

From Lotito, M.J., Esq. with Jones, Craig, & Pimental, R. with Baker,L. (1990). "The Americans with Disabilities Act: Making the ADA work for you." Milt Wright & Associates, Inc./Jackson, Lewis, Schnitzler & Krupman, page 23.

This brochure was written by Kay N. Robinson, SPHR, Assistant Vice Chancellor for Business Affairs - Human Resources, University of North Carolina at Wilmington, North Carolina. This publication is taken from a more extensive review of the topic entitled "A Model Plan for Implementation of Title I of the Americans with Disabilities Act of 1990: The Human Resource Perspective," which is currently available for purchase from your Regional Disability and Business Technical Assistance Center at 1-800-949-4232, or from LRP Publications (specify Product #31015.PLAN, 24 pp., $9) at Dept. NIDRR, PO Box 908, Horsham, PA 19044-0980, phone 1-800-341-7874, Fax 1-215-784-9639.

Funding Source

This material was produced by the Program on Employment and Disability, School of Industrial and Labor Relations - Extension Division, Cornell University, and funded by a grant from the National Institute on Disability and Rehabilitation Research (grant #H133D10155). It has been reviewed for accuracy by the U.S. Equal Employment Opportunity Commission. However, opinions about the Americans with Disabilities Act (ADA) expressed in this material are those of the author, and do not necessarily reflect the viewpoint of the Equal Employment Opportunity Commission or the publisher. The Commission’s interpretations of the ADA are reflected in its ADA regulations (29 CFR Part 1630) and its Technical Assistance Manual for Title I of the Act.

Cornell University is authorized by the National Institute on Disability and Rehabilitation Research (NIDRR) to provide information, materials, and technical assistance to individuals and entities that are covered by the Americans with Disabilities Act (ADA). However, you should be aware that NIDRR is not responsible for enforcement of the ADA. The information, materials, and/or technical assistance are intended solely as informal guidance, and are neither a determination of your legal rights or responsibilities under the Act, nor binding on any agency with enforcement responsibility under the ADA.

In addition to serving as a National Materials Development Project on the Employment Provisions of the Americans with Disabilities Act of 1990, the Program on Employment and Disability also serves as the training division of the Northeast Disability and Business Technical Assistance Center. This publication is one of a series edited by Susanne M. Bruyere, Ph.D., C.R.C., Director of the ILR Program on Employment and Disability at Cornell University.

Other Titles in this Implementing the ADA Series—

• A Human Resource Perspective on Implementing the ADA
• Reasonable Accommodation Under the ADA
• Pre-Employment Screening and the ADA
• Pre-Employment Testing and the ADA
• Health Benefits Plans and the ADA
• The Implications of the ADA for Personnel Training
• The ADA and Collective Bargaining Issues
• The ADA and Injured Workers
• Attitudes Toward the Employment of Persons with Disabilities
• Total Quality Management Applied to the Implementation of the ADA

For further information about publications such as these, contact the ILR Program on Employment and Disability, Cornell University, 102 ILR Extension, Ithaca, New York 14853-3901; or at 607/255-2906 (Voice), 607/255-2891 (TDD), or 607/255-2763 (Fax).

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