It's your turn to help me!

awilliams

I am currently working on the next HR Executive Special Report and I need your input! The next Special Report will cover the ADA in depth. I was wondering if you could post some of the tougher issues you have had to deal with in implementing the ADA. This could include going through the process of crafting an accommodation, dealing with an EEOC investigation, special issues concerning mentally ill employeess, or anything that you think other HR folks would be interested in knowing about. I encourage you to post your responses here, but you mail also e-mail me directly at [email]awilliams@mleesmith.com[/email].

I appreciate your help!

Anne Williams
Attorney Editor
M. Lee Smith Publishers, LLC

Don D

Looking back over the years, I think my thorniest issue was coming into a new HR Director position and actually removing an accomodation granted by my predecessor. After thorough review, I concluded that the prior manager had actually gone way too far in the accomodation and had crafted an entirely different job to remove the most essential function of the job, forklift operation. The employee suffered from seizures on a fairly regular basis and his physician had listed that as his restriction - can perform the essential functions EXCEPT OPERATING EQUIPMENT, SPECIFICALLY FORKLIFT. The job is in a shipping environment in manufacturing. Forklift is 90% of the job. We're union and there was no leeway to shift him to another position since it would violate the bidding procedures. So, he sat around doing nothing 90% of the time and continued to have seizures and we found him unconscious several times. I decided to require a new 'Physical Capacities Appraisal'. Following that, we met with the employee to thoroughly discuss the issues. He was asked whether he could perform the functions of the position into which he was hired, not the created job, and to speak to whether or not he could do the job with or without accomodation and he said he could not, if it required forklift. It might have gotten more interesting had he gotten a hungry attorney. We eliminated the wrongly created position, explained out reasoning to him, and advised him in a real compassionate way why we could no longer keep him. I've not read about another similar case where a wrongly crafted accomodation was dreamed up and later reversed.

Hatchetman

I work for an agency that provides services to people with mental illness.

One of goals the agency has is to increase the the workforce readiness of people with mental illness and counter the stereotypes of employers and the public about employing people with mental illness. To accomplish this, as well as to increase our effeectiveness of services to people with mental illness, the agency "toyed" with the concept of bringing "peer counselors" on board. It wanted to identify only our clients or individuals with established mental illness as being eligbile for this "peer counselor" position. Of course that would bring up whether or not we as an employer could make mental illness a BFOQ and mandate that applicants identify themselves as having a mental disability. I can't give you an answer on what we did because the issue died out, but it would have been interesting to see the ADA in play. The goals of both the Department and ADA would have been together, but whether or not the mechanisms would have been is another matter.

Dottie

I am currently working on one issue that is a little difficult. We are in the club business, so we have housekeeping needs round the clock in order to provide the members with a clean facility that has plenty of supplies on hand. One of our properties hired a mentally challenged individual as a porter. The hire was made at the direction of the man who was General Manager at the time. The employee in question is the GM's girl friend's sister. The GM has since been terminated due to poor performance and dishonesty, among others. The Department Head who was forced to hire this individual did so under protest. The problem is not that the employee is incapable of performing the work at all. The problem is that she cannot work the hours for which we really need the coverage. Also, while she is working, she requires constant supervision, so that makes it necessary for us to have additional staff on hand just to make sure she receives that supervision. This has created a situation wherein this particular department is over budget in payroll. Before the GM was terminated, they had resolved this by "hiding" the payroll for this employee in another department. The payroll records have been rectified. I am working with this Department Head to try and resolve the issue without being discriminatory toward the employee. I could use a little advice on this one!

bsa

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Anne -- I understand that HR should "medically certify" a disability. It has been suggested in this forum that HR use the FML medical certification form, but that addresses a serious health condition as defined by the FMLA not a disability as defined by the ADA. The DOL was very helpful by providing a form for FMLA, yet we are left to our own devises to comply with ADA. I attempted to modify the FML form to remove FMLA references and add ADA criteria, but I'm not sure that I was successful in creating something useful (I haven't had a need to use it). Addressing the medical certification process in your new report would be very helpful.

awilliams

Thank you for all your input. You have all certainly given me much to think about. I appreciate it!

Anne Williams
Attorney Editor