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Prepare for the ADA long haul: Disability accommodation isn’t a one-time event

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in Employment Law,Human Resources

Disabled employees who need reasonable accommodations are entitled to what the ADA calls the interactive reasonable accommo­­dations process. What exactly that means varies by the individual and may change over time.

Employers that consider the interactive process as a one-time thing may end up in court.

Here’s why: Some disabilities be­­come more serious over time and employees’ accommodation needs may change. Other disabilities change; employees sometimes need accommodations, sometimes they don’t. Accommo­­dations themselves may need to adapt as new medical treatments or workplace technologies emerge.

Advice: Regularly review accommodations—especially when an employee makes a fresh request for assistance. Remember, employees don’t have to submit requests in writing.

Recent case: Sandra, a nurse at the VA Medical Center in Butler, Pa., had a mouthful of dental fillings that contained mercury. As a result, she sometimes lost her voice for months. The mercury caused vocal cord edema, which in turn made her voice hoarse and low.

At first, she obtained a device that she could place next to her throat while speaking to amplify her voice. None of her supervisors or patients complained when she first used the device. She also underwent extensive voice therapy to make her speech clearer.

This, Sandra claimed, wasn’t very effective; she preferred the mechanical device.

Because her condition sometimes improved on its own, she didn’t always need help.

However, when her condition flared up again as she neared retirement, she asked her supervisors for permission to again use the device. They denied her request. Instead, she was sent from doctor to doctor and ordered to undergo voice therapy or face a medical termination. She refused and retired.

Then Sandra sued. She alleged that the Department of Veterans Affairs had refused to engage in the ADA interactive accommodations process.

The department countered with several arguments. It denied that she was disabled since her voice only disappeared periodically. It contended that since she didn’t request an accom­­mo­­da­­tion in writing, she hadn’t started the interactive process. Finally, it argued that because she refused to undergo voice therapy, it was Sandra’s fault she had to retire.

The court didn’t buy any of those arguments. First, it pointed out that someone can be disabled even if the disability only periodically substantially impairs a major life function, as was the case with Sandra.

Plus, the ADA doesn’t require employees to request accommodations in writing. Merely telling a supervisor they are disabled and need help is enough.

Finally, because the VA ignored Sandra’s request to use the voice device, it couldn’t argue her refusal to take voice therapy foreclosed a lawsuit. (Pearce-Mato v. Shinseki, No. 2:10-CV-1029, WD PA, 2012)

Final note: Even disabilities that come and go are covered by the ADA. This is one of the changes Congress made when it passed the ADA Amendments Act of 2008. Examples include cancer and other conditions that go into remission, along with epilepsy and other conditions characterized by periodic crises.

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