The following questions are from “Getting Started: Launching Your Reasonable Accommodation Program” Webinar, aired August 12, 2015.
I have an applicant for a janitorial job who has extensive spine injuries. He is requesting that the employer provide a back belt upon hire for wearing at work. There is NIOSH research that shows that back belts are not proven to help prevent back injuries. No other person in our facility wear back belts. Do we provide the requested item even though we do not think it will help?
Let’s dissect the question beginning with the fact that the individual is anapplicant for the janitorial position. First, he apparently has self-disclosed his history of “extensive spine injuries.” The person conducting the application interview should document the self-disclosure but should not press for further medical or family details. The applicant is still in the application phase of employment; medical questions are precluded at this stage.
Second, the applicant has made a request for an accommodation in the form of a back support belt.
Red flag: the interviewer would be committing a violation of the ADA Title I if the request of accommodation is ignored. The verbal request to use a back support belt triggers the need to begin both documentation and the Interactive Conversation. The request should be recorded as a “Request for Accommodation, Application Phase”, in the company’s reasonable accommodation tracking system. (Should the EEOC or a plaintiff attorney submit a Request for Information the company will want to include this interaction in their reply; even if this request is not the subject of the request the statistics indicating a well-managed request are of value.) Because of the multi-faceted nature of this request, it feels like a situation that may result in a complaint to the EEOC. A state of vigilance to detail is warranted.
Third, from the details provided during the webinar, it appears that no other person in the facility wears a back support belt. Although Title I frowns on blanket refusal of classes of accommodations (must be 100% healthy, no leave outside of that earned, no accommodation over $100, etc.), I would be interested to know if this is a company policy supported by their ergonomics team or a is coincidence.
Fourth, the questionnaire stated, “There is NIOSH research that shows that back belts are not proven to help prevent back injuries.” This statement is a learning opportunity for each of us. If this case ends up in some form of complaint to the EEOC or a plaintiff attorney, I can see two issues arising:
“Where is your support of the statement that NIOSH research shows that back belts are not effective?”
“Who on our team made that statement?”
I make this comment based on recent experience of a question being raised in a settlement negotiation many years after a statement was made. The learning opportunity for each of us is to document who made the statement and the source of the reference to its validity. Keep in mind that we may have a “threat to self or others” at play in this case. We want to be able to address that issue if it is raised as a violation of the law.
The action step in terms of the NIOSH statement is to document the credentials of the person who made it. One can appreciate the gravitas of such a statement if the individual has an occupational therapy or ergonomic evaluation background. In that case the veracity carries itself. But if the statement is made by a person who lacks training in ergonomics, then we have a weak defense.
The next step is to document the source of the statement. In this case one would want to reference the NIOSH web site. Make a copy of the page and place it in the record of this request for accommodation; don’t rely on the presence of the team member who made the statement. This information would probably be needed in the heat of a negotiation! At the very least ask the team member for a memo referencing support for the statement. (For a detailed technical report on the studies NIOSH reviewed regarding this issue, call 1-800-35-NIOSH to request “Workplace Use of Back Belts: Review and Recommendations” (Publication No. 94-122) or see http://www.cdc.gov/niosh/docs/94-127/default.html.
There are two more steps that should be taken at this point in the application interview. I will discuss those steps in my next installment.
Keep in mind that my webinars are intended to be part of the on-going discussion about how to successfully accommodation individuals with disabilities; they are not intended as legal counselling.