From the desk of Tracie DeFreitas, M.S., Principal Consultant — ADA Specialist
Anyone who has been employed at an organization for a lengthy period of time is likely to experience a change of supervisor at some point in their tenure. A change in management can often bring a fresh perspective on business operations, but for employees with disabilities, this change can sometimes impact effective accommodations that were provided by a previous supervisor. At JAN, we frequently hear about situations where accommodations were rescinded or changed – incidentally or deliberately – when new management arrives. For example, when a change is made to a telework policy that requires all employees to be present in the office, or an attendance policy is modified in a way that impacts flexible scheduling.
Employers should be aware of the potential ADA risks of violating employees’ rights to accommodation in these kinds of situations. In particular, uninformed new supervisors may risk requesting new medical information to support previously approved accommodations or may burden employees with disabilities by requiring a new interactive process to continue to receive effective accommodations. Change happens and we are often forced to accept it, but employers need to be smart and make informed decisions before making changes that often impact employees with disabilities. To facilitate a smooth transition, it’s important to educate new management about ADA policies and procedures and current accommodations before they part with old ideas, in favor of their own. JAN can offer some practical tips to help new management transition and avoid common ADA and accommodation mishaps. Consider the following:
- Establish a written reasonable accommodation policy and educate all management regarding accommodation procedures and how to engage in the interactive process under the ADA.
- Maintain an accommodation tracking system that enables the electronic processing of accommodation requests, provides access to case histories, and offers relevant accommodation information on-demand. Tracked accommodation information can be made available to management on a need-to-know basis. New management may be informed about existing accommodations during the transition period, when necessary. It is suggested that medical information be kept apart from accommodation information. Under most circumstances, management will not need access to medical information to continue to implement previously approved accommodations.
- Recognize the benefits of workplace flexibility and be mindful that changes in telework and attendance policies, scheduling, breaks, services provided, etc., can impact employee performance and availability. Before making changes, learn what’s working, check the accommodation tracking system, and be prepared to continue existing accommodations, if reasonable.
- Do not request new or updated medical information when unnecessary. When it’s clear that accommodations were approved by past management, and when sufficient medical information was already provided by the employee to establish an ADA disability and need for accommodation, transitioning management will not likely have job-related reasons to request new or updated medical information to continue to approve accommodations. See question 8 in the Equal Employment Opportunity Commission (EEOC) guidance on Reasonable Accommodation and Undue Hardship under the ADA.
- Confirm the need for accommodation, when necessary. Sometimes it’s not clear that an accommodation is still needed and new management would like confirmation, or sometimes information about the accommodation was not documented or is missing. A practical approach to 1) documenting the accommodation, and 2) confirming it is still needed, is to simply request reasonable documentation (i.e., a note from an appropriate professional) that confirms the continuing need for accommodation, due to the employee’s medical impairment. No specific medical information is necessary.
- Create a “safe space” to discuss accommodations by informing all employees within the department that new management is available to address accommodation concerns. This facilitates open communication and can be a strategy for preventing performance issues that can develop when employees are uncomfortable approaching new management with accommodation issues.
The idiom "Out with the old, in with the new" is sometimes thought of when new management comes on-board. The changes that come with transition can be quite impactful, particularly for employees with disabilities who have worked to receive effective accommodations. Remind new management to think about the ADA and accommodations before making quick decisions to break away from past ideas about workplace operations.