You can’t outsource accountability and responsibility.
As a vocational rehabilitation service provider, I serve working-age youth and adults, 16 years and older with disabilities. About 3 months ago, I began supporting a middle-aged man with over 30 years of experience in food service. Throughout the job search, I reminded him the way necessary, training and information beginning with the interview process, résumé, writing, mock interviews, and outlining disability disclosure. Once he obtained employment with a local active senior living facility, we discussed whether or not he planned to disclose his disability and request accommodations under the Americans with Disabilities Act (ADA). After some consideration, and based on previous experiences, he decided it might be best to do so.
The decision to disclose one’s disability is a deeply personal one and is not an action taken lightly. Unfortunately, misconceptions regarding the capacity of disabled persons have reached every level of society, spanning public and private sectors. The United States Department of Labor (DOL) provides guidance for employees and employers regarding disability disclosure, rights and responsibilities, and publishes a listing of reasonable accommodations on their Job Accommodation Network, or AskJAN (www.askjan.org). Given that my client and I had discussed the typical process for disclosure and reviewed the AskJAN site at length, he opted to inform his supervisor and request guidance to the appropriate member of the Human Resources team soon after he began working. He and I both were a little surprised by what we learned next.
By law, employers are required to provide reasonable accommodations to employees who disclose disabilities. The caveats to providing accommodations depend on the size of the organization and the extent to which doing so would cause undue burden. For more information on that, visit the United States Department of Labor (DOL) website linked at the end of this article. Now, back to my client…
When he spoke with his supervisor and was directed to the Human Resources Department, he was told that requests for ADA accommodations were not handled by them directly. Requests were, instead, outsourced to a third party not available onsite. Naturally, he was confused. Everything he and I discussed prepared him to request accommodations on-site for implementation on-site. He immediately text and emailed me, unsure of what to do next.
While I had heard of companies outsourcing in passing, I had not supported someone through the process directly. He sent me the information they gave him and I worked with him to draft an email request for accommodations and the procedure for getting the accommodations through the third party agency (TPA). So far, he has not received a response regarding his request other than the on-site HR representative stating that his request is “pending”, and no accommodations have implemented after over a month of him working.
Can my client perform the most of essential functions of his job without accommodations?
Technically, yes.
Should he have to do so while navigating what has proven to me a much more complex process than either of us realized? Does the outsourcing ADA accommodation management absolve his company of responsibility for complying with the ADA in the meantime?
No and NO.
In a recent article published by the Society of Human Resource Management (SHRM), Specialist Rachel Zheliabovskii (info and article linked below) highlights an ADA disability discrimination settlement between the Equal Employment Opportunity Commission (EEOC) and Penney OpCo LLC, which does business as JCPenney. Zheliabovskii explains that the lawsuit involving a warehouse employee undergoing treatment for breast cancer. She notes that the employee submitted a written ADA accommodation request and medical documentation of her treatment and her need for leave to the company’s TPA, but the company denied her request. The employee was later terminated from her position when the time she took off for cancer treatment was subsequently counted against her under the company’s attendance points policy. As was her right, she contacted the EEOC and began the process of filing suit under ADA disability discrimination. Consequently, the JCPenney was found liable for discrimination and the employee was awarded monetary compensation.
Nadine Chang Dupré, of counsel at Quarles & Brady in San Diego is cited in the article. She notes, “An outside administrator can handle much of the procedural work — such as receiving requests, following up with employees, obtaining medical paperwork and tracking accommodations — but “the employer is ultimately responsible for compliance”.
For many working-aged youth and adults, disability disclosure is a sensitive and difficult process in and of itself. While using a TPA can create an efficient and consistent administrative process for HR departments, it can present a significant challenge for its disabled employees. From requesting accommodations, to submitting documentation, and waiting to receive accommodations under federal law from a third party makes the process harder for those seeking equitable access and inclusion in the workplace.
Offloading the process and responsibility for accommodations implementation to third party organizations that do not know the employer’s business does not make for a streamlined process. Just ask the JCPenney warehouse employee or my client. Management and oversight of accommodation implementation are crucial to ensuring employees receive the support they need in real-time and that organizations comply with federal law.
As it turns out, you might be able to outsource some tasks and processes but you cannot outsource accountability and responsibility.
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