Thursday, July 28, 2016

DMEC Conference Focuses on Leaves and Reasonable Accommodation

Last week, the Disability Management Employer Coalition held its annual conference in New Orleans. The conference focused on how employers can bring individuals with disabilities into the workplace and manage their needs once they are hired. In our view, there was evidence of great progress on display at the conference, but it was clear that the employment community still has a long way to go in its efforts to level the playing field for disabled applicants and employees.  Here are some of the themes and issues that dominated the discussion: 

Health care providers should not make personnel decisions.  When it comes to leaves and reasonable accommodations, health care providers may place restrictions on particular employees, such as limits on lifting, twisting, or standing.  Providers may also be the source of important information about the nature of reasonable accommodations employers are obligated to make. It is never appropriate, however, for health care providers to attempt to dictate how work should be done or how necessary limitations are handled.  Those decisions remain with the employer. 

Health care providers are limited in the information they can lawfully share.  Just like lawyers, health care providers keep secrets.  They can share only the information they are authorized to share by their patients and by laws like HIPAA.  The EEOC, for example, has issued guidance explaining that doctors do not have to share specific diagnoses just because employers request them.  Employers are limited to receiving only the health information they need to determine if a reasonable accommodation (including leave) is necessary.    

Technology can hinder individuals with disabilities.  During a conference presentation about technology available or on the horizon for individuals with disabilities, online job applications were widely criticized.  A 2015 survey of disabled job applicants revealed that 46 percent found the online application process difficult or impossible to navigate. Even when the employer provided technical assistance, 58 percent of those surveyed reported that they were unable to complete the application.  Employers are required to provide reasonable accommodations for individuals with disabilities during the job application process, but it seems that so far, technology has not adequately addressed that responsibility. 

Technology can help individuals with disabilities.  The Spaulding Rehabilitation Network made a presentation at the conference that showcased “rehabilitation robots.”  The robots help individuals with all sorts of injuries recover and regain their motor functions, mobility and agility.  Assistive technology can also help individuals with cognitive disabilities become more active in their communities and workplaces.  

HR tech should be carefully reviewed and rigorously tested prior to purchase. Leaves of absence and reasonable accommodation requests can be tedious and difficult to manage, and there are many HR tech vendors trying to make the process easier.  Automating the process using technology, however, is not a guaranteed solution. As with all forms of HR technology, leave and accommodation management technology should not be adopted without careful evaluation. Two HR professionals and an HR tech vendor who spoke at the conference suggested that prospective vendors and their products should be presented with difficult and challenging scenarios in an effort to determine if the product will keep the employer compliant and provide a real benefit.  They suggested, and we agree, that if vendors are put through their paces, can provide a product appropriate for each workplace, and work hard to keep up to date on the constantly changing world of employment law, technology that assists in managing leaves and reasonable accommodation requests may be of real benefit to employers. The presenters acknowledged, however, that their employment lawyers got nervous about the prospect of such technology, and we’re sympathetic to the lawyers’ concerns.   

Posted by Kate Bischoff