The ADA Questionnaire is a basic resource employers should utilize to determine if an employee is eligible for protection under the Americans with Disabilities Act (ADA), as amended.  This form facilitates the engagement of the interactive process.  It helps define what, if any, accommodations might be necessary for compliance.  Many employers remain unfamiliar with the form and its proper use.  Employers must incorporate the ADA Questionnaire in policy and protocol for address of covered disabilities in the workplace.  It is a critical tool for address of an employer’s rights and duties under the ADA.  Employers must determine whether the ADA Questionnaire is understood and incorporated as a central component of their existing policy and protocol.

The ADA applies to employers with 15 or more employees for each working day in each of 20 or more calendar weeks in the current or preceding calendar year.  It covers state and local governments, employment agencies, and labor organizations, as well.  The ADA defines an individual with a disability as a person who:

• has a physical or mental impairment that substantially limits one or more major life activities;
• has a record of such an impairment;
• is regarded as having such an impairment.

The ADA "prohibits discrimination against qualified individuals with disabilities."  A qualified individual with a disability is:

• an individual with a disability who satisfies the requisite skill, experience, education and other job-related requirements of the employment position such individual holds or desires; and
• an individual who, with or without reasonable accommodation, can perform the essential functions of such position.

Often, employers are unaware of whether an employee suffers from a protected disability requiring accommodation and compliance with the ADA.  Many times, the impact of a disability subtly manifests itself in the form of issues with work performance or attendance.  According to the Equal Employment Opportunity Commission (EEOC), an employer generally does not have to provide a reasonable accommodation unless an individual with a disability has asked for one.  There is no “magic language” requirement for ADA accommodation.  An employee does not need to specifically invoke the ADA.  The request does not have to be in writing.  The employee only needs to request accommodation or demonstrate a need for required assistance to trigger the protections of the ADA and initiate the interactive process.  Moreover, claims do arise, post termination for attendance or work performance, even where no request for accommodation is lodged.  While the employer may assert affirmative defenses when an employee fails to engage the interactive process or report an injury, preliminary defense of a state or federal claim is costly and precarious.

Employers must be proactive in the address of disabilities and potential accommodations, including:

• Employers should train all employees, including supervisors, as to appropriate identification and address;
• Employers should have a written policy and protocol for the ADA;
• Employers should understand and utilize resources directed to engage the interactive process with employees.

The ADA Questionnaire is a necessary component of any effective ADA policy and protocol.  When properly utilized, it will provide the employer with necessary documented, medical review of an alleged disability and recommended restrictions.  It will serve as the foundation of ongoing interactive discussion balancing potential accommodations against undue hardship and legitimate business needs.

Like any tool, the Questionnaire must be appropriately utilized.  It cannot be dispensed without a legitimate basis for inquiry.  It should not be used to “fish” for possible disabilities.  Employers must remember that “regarding” an employee as having a disability is tantamount to discrimination.  We recommend consult with experienced counsel before invoking the ADA Questionnaire.

Finally, employers must remember the overlap between the ADA, Workers’ Compensation and the Family and Medical Leave Act (FMLA).  All too often, employers continue to focus exclusively on accommodation of work-related injuries.  They forget or deny the requirement to evaluate non-occupational conditions, impacting an employee’s ability to work, for reasonable accommodation.  In their review, all options of accommodation must be considered, including but not limited to, unpaid leave (perhaps FMLA), eligibility for ongoing benefits (either healthcare or STD/LTD), as well as possible job modification or reassignment to an otherwise open position within the employee’s qualifications, credentials, and restrictions.  This overlap between statutes presents a minefield of potential liability.  Employers cannot ignore their responsibility.  Employers must familiarize themselves with the proper application and potential points of exposure.  Employers must consult experienced counsel before any definitive employment action is taken.

The lawyers of the C&W Employment Group are available to answer questions, review policy or provide training.  We can provide a copy of the ADA Questionnaire upon request.  Please contact James F. Devine, Esq. at jfdevine@c-wlaw.com or (717) 390-3020.

Disclaimer

The information in this article is provided for general informational purposes only and may not reflect the current law in your jurisdiction.  By reading this article, you understand that there is no attorney-client relationship between you and Cipriani & Werner, P.C. or any of our attorneys.  No information contained in this article should be construed as legal advice from Cipriani & Werner, P.C. or the individual authors.