How do I HR [Accommodations Edition]?
July 24, 2018 7:48 PM   Subscribe

I manage HR for a small nonprofit. An employee has requested accommodations for a mental health condition. I have no formal training and my employer offers no policies or guidance. Please help me figure out how to figure out what this employee needs and how to provide it. [snowflakes inside]

An employee (EE) met with me to mention that they have a mental health condition for which they would like to request workplace accommodations. They had previously reported it to their supervisor (SU) and the executive director (ED) a few months before I was hired, but nothing came of that initial request. I've reviewed the JAN info on the condition and typical accommodations, but I think the next step needs to be to talk the employee in more detail about where they experience difficulty and how we can help. Then I imagine the next step after that will be to discuss the proposed accommodations with SU and ED and implement them. Emphasis on the "I think...?" because my employer is the sort of small, disorganized, fairly dysfunctional nonprofit that would put someone with no formal HR training in charge of HR. Assume I am starting from scratch, policy-wise.

My questions are:
1a. How do I approach the conversation with EE about what difficulty they experience or anticipate? Obviously I don't want to put them on the spot, make them uncomfortable, or solicit any personal medical information, but I do want to get enough of the right info to design solidly helpful accommodations.
1b. What phrases should I use or avoid?
1c. Is there a way to do this that makes it clear that EE shouldn't be performing any emotional labor to explain things to me, just to tell me what they need?
1d. Is it even appropriate to start with this conversation with EE? Should I be starting elsewhere?
2. What resources are out there outside of JAN for employers? Most of what I've seen seems to be focused on supporting patients or caregivers.
3. How do I hold SU and ED accountable for following through on these accommodations?

Bonus difficulties: SU is not a great manager; they don't strike me as particularly supportive of or engaged with their supervisees. I get the impression that EE in particular is doing large portions of SU's job, and that this is very intentional on SU's part. ED is generally inclined to turn a blind eye to SU's defects as a manager. Even if they know that we are required by law to provide accommodations, I'm already wondering how to keep SU in particular accountable for the less quantifiable accommodations we may provide. (For example, one of JAN's suggestions for EE's condition is clear, timely communication about big impending changes, so how can we make sure SU actually informs EE ahead of time instead of just dropping the info on EE at the last minute and then claiming they totally gave notice?
posted by Fish, fish, are you doing your duty? to Work & Money (9 answers total)
The first step is to ask for documentation from the employee’s licensed healthcare provider. This documentation is stored in a separate HR folder from work-related documents like job descriptions and performance reviews. If the employee needs to get the documentation, they can discuss the essential functions of their work with their provider to discern what might be helpful.

You would follow the employee’s lead on what might be effective. JAN provides a laundry list, but the accommodation is based on the specific limitations, as disability shows up differently given human variations and treatments. You also need to discern what is reasonable. If the employee cannot perform their work, that’s leave, and you might be in an FMLA process.

Do not confuse the accommodation process with what sounds like a clarification of job duties. Your employee might be performing at a level where reclassification might be considered.
posted by childofTethys at 8:20 PM on July 24, 2018 [3 favorites]

I am not HR, but I would be similar to your SU/ED role.

#1 you need to determine with your non-profit what your policy on workplace accommodation will be. At my workplace, we are incredibly liberal with accomodations but if the accomodation you required made it impossible for you to do your work, your accomodation could mean being transferred or terminated (for example: a trash truck driver who due to physical ability can no longer drive a trash truck cannot fulfill their job. If we have a vacancy to transfer them into, that is an option, if they decline the transfer, they're facing termination).

#2 if your workplace a union workplace? If so, while developing this policy you should work in coordination with senior leadership and the union in order to develop something that is good for all involved. Please be sure to give employees an opportunity for buy-in, input, and think seriously about the feedback.

#3 For this particular employee, with EE, you do not hold SU and ED responsible for anything. If they fail to fulfill the accomodation (and it is a reasonable accomodation), you follow whatever policy you devise to notify ED or ED's supervisor, and they take action. SU's skill as a supervisor or not is not really your problem. Your only client here is EE and your nonprofit.

#4 My organization requires doctor's notes for accomodations unless it is an accomodation that the SU and EE agree on without outside intervention (e.g. an EE1 with a SU1 agree to get EE1 an adjustable height desk to help with back pain). If SU has questions, e.g., EE has requested an accomodation that doesn't seem reasonable, getting a practitioner involved who can provide feedback on precisely what accomodation is needed (sometimes this is an ergonomics specialist, other times this is a phsician) is a good idea.
posted by arnicae at 8:21 PM on July 24, 2018 [4 favorites]

I've been in and seen other people in EE-like roles for mental health stuff. With mental health specifically, I'd consider the possibility that the specific desired accommodation may not cost much or need much organizing. If you're buying an ergonomic chair, keyboard, mouse, and desk, you're going to have to do some sort of procurement process. On the other hand, if you're agreeing EE can have a more flexible schedule, wear hearing protection, or sit with her back to a wall, you might not have to deal with any of that.

Depending on your employee's insurance and how this works in your area, getting a formal neuropsych evaluation for necessary accommodations might be way more expensive and time consuming for everyone than saying "sure, you can bring in your fancy headphones." maybe have her therapist write an email or letter.

I would ask what she's having difficulty with/what is harder for her than most people because of her life circumstances, and talk about how you can manage that. You might also ask if she's done an IEP or accommodations process before for school or other jobs - it's possible she has existing expectations you can exceed very easily.

I'd be cautious about suggesting leave or solutions outside the workplace at this meeting. I was once told not much could be done about a manager's decision to start doing a thing that annoyed everyone else and left me shaking, hyper-vigilant, and struggling to sleep at night. The options were me "getting on better meds, taking disability leave until it's fixed, or resigning," and I took the third one.
posted by bagel at 10:03 PM on July 24, 2018

JAN is a great resource for forms and processes as well as for specific accommodation ideas. In particular, you might find these forms helpful:

- Accommodation checklist - this one will be EXTREMELY useful to you. It'll guide you through the entire process, including your discussion with the employee and the documentation and follow-up on the plan.
- Accommodation request - it would be great to have the employee fill this out prior to your discussion with them, even if they have already requested accommodation verbally. This will help give you more details on what to talk about with them, and it covers some key details (like duration) that you might not otherwise think to ask.
- Accommodation assessment form for healthcare provider - if you need medical documentation, then this is a good form to use. Have the employee bring this form to their healthcare provider along with a copy of their job description/duties. Store this form separately from the employee file and keep it confidential as possible.

Key item to remember: it's good (in fact, it's required!) that you discuss the accommodation with the employee to figure out how to make it work for all parties. However, if you think you might be about to deny all or part of a requested accommodation, go slow! Be sure to clear it with your higher-ups (and possibly a lawyer!) first. The burden is always on the employer to prove that an accommodation is not reasonable, and that's difficult to prove. Denying a requested accommodation can lead to legal action -- so be sure that, if you believe that's what needs to happen, you've consulted someone knowledgeable, you have the support of your managers, and you're all ready to defend the decision.

JAN also has a free support hotline. Do give them a call if you're unsure what to do next -- they're very knowledgeable.
posted by ourobouros at 6:45 AM on July 25, 2018 [3 favorites]

A nonprofit I worked for got guidance on issues like this from legal counsel that ran some sort of help hotline, I think possibly through insurance? Or maybe through a low-cost subscription for up to X hours / year? This won't be the only thing you will need advice on, so it might be worth figuring out how to get the help you need, in general.
posted by slidell at 9:13 AM on July 25, 2018 [1 favorite]

This seems like the sort of thing that could escalate to a legal problem - they've already tried the informal approach and haven't got anywhere with management so are now going formal in asserting their rights. I think your org needs an employer lawyer or hr consultant on retainer that can handle official things like this where it's important for everyone (including the future of the org) that it's done correctly.
posted by JonB at 9:52 AM on July 25, 2018 [3 favorites]

IANAL IANAHRprofessional
I would absolutely not discuss the condition with the Employee; you are not a professional in mental health, it is not your job. I would ask for a letter from a health care provider with the accommodation requested. Your job is to work with Supervisor and Employee to ensure that the accommodation is reasonable and that it gets implemented.

I have 2 medical conditions (1 is affected by stress but neither are categorized as mental health). I asked for specific accommodations. One was a no-brainer that can be considered an accessibility and safety issue and involved some equipment expense - the site was not up to code, the other was pretty simple. My supervisor did not provide the accessibility accommodation. My supervisor gave me crap and was unsupportive about the simple accommodation. Reader, I ended up using significant accrued sick time and disability insurance. I sued my employer and we reached a settlement. It was a miserable experience for me and it was very expensive for my employer. It was easily avoidable.

1a. How do I approach the conversation with EE about what difficulty they experience or anticipate? Obviously I don't want to put them on the spot, make them uncomfortable, or solicit any personal medical information, but I do want to get enough of the right info to design solidly helpful accommodations. Employee, it's my task to help you specify the accommodation that you need and to help Company implement it.
"design solidly helpful accommodations." This is almost certainly outside your scope. If additional help is needed to design accommodation, hire a consultant.

1b. What phrases should I use or avoid? avoid asking for health info other than a diagnosis, do not act in a therapeutic manner.
1c. Is there a way to do this that makes it clear that EE shouldn't be performing any emotional labor to explain things to me, just to tell me what they need? Emotional labor is not a useful term here, because it is too subjective. The health care provider needs to specify what is needed, and it must be something that the employer can do.
1d. Is it even appropriate to start with this conversation with EE? Should I be starting elsewhere? The only question for Employee is "what accomodation do you need?"

2. What resources are out there outside of JAN for employers? Most of what I've seen seems to be focused on supporting patients or caregivers. Your state may have resources. An HR professional association may have resources.

3. How do I hold SU and ED accountable for following through on these accommodations? Check in with supervisor after 90 days, 120 days to see how the accommodation is going. Make sure Supervisor is aware that the accommodation is Not Optional.
posted by Mom at 11:38 AM on July 25, 2018

IAAL, but I am not your lawyer and am not and cannot provide you legal advice, particularly in fact-specific areas as complex as reasonable accommodation law.

A few things:
- If you're a non-profit you may be able to get pro bono assistance from a qualified employment attorney who can help you understand your obligations and the parameters of the law. If you work with an attorney of any kind you can reach out to them and ask them if they know of anyone who practices employment law who might be able to provide you pro bono assistance. I strongly recommend this.
- It appears you're in California, which means that you cannot ask an employee for their actual diagnosis. This makes logical sense - you don't need to know what an employee's medical condition is, you just need to know the effects on their ability to work (i.e. what are the limitations imposed by their condition) and their and/or their physician's suggested accommodations.
- Other than California nuances, the EEOC's guidelines are great to help you understand your obligations. I would say this can get you 80% of the way there, but there are other California differences (view on how long a leave of absence has to be before it becomes unreasonable, etc.) though, so these are not a replacement for qualified legal counsel:
EEOC Guidance on Accommodation
EEOC Guidance on Accommodations for Small Employers (note that CA law applies to smaller employers than federal law, so don't be misled by the "15 or more employees" language at this link, that's just talking about federal law).
- Here's a California specific resource, but it's not as extensive: CA Dept of Fair Employment and Housing on Accommodation
- The most important thing here is that an interactive process is what's required. You need to have open lines of communication with the employee about their limitations, what accommodations may work, whether the accommodations selected are actually working, etc. Keep notes of all conversations, document document document. If the employee proposes an accommodation and you reject it, document the reasons why, and vice versa. An employer is not required to provide any accommodation an employee wants, but the bar is high for proving that an accommodation is unreasonable. It is not accurate to say that the only thing you need to ask is what accommodation is needed - the conversation should start with limitations and then move to accommodations that meet those limitations. Without knowing the limitations you're hamstrung in your ability to brainstorm possible accommodations.
- Above all, the guidance I give my clients is that they need to approach these situations with the mindset of "If I sincerely and honestly wanted to do what I could to allow this person to return to work/keep working, what would I do? If I can't do that, why not?" And document document document that "why not." (It should go without saying that in a perfect world employers would actually all want this - in our world it is very often not the case when someone is otherwise not a good performer, is personally annoying, etc.)
- Do make sure that SU and ED know this is not optional and that they are subjecting the org to substantial potential liability if they fail to comply. If you get sued, they will have to be involved (even if they are no longer with the org), and it will be messy and expensive and distract from the org's purpose.
posted by wuzandfuzz at 2:01 PM on July 25, 2018 [2 favorites]

Thank you to everyone who replied. Your answers were all super helpful, and I appreciate the guidance and perspective.

EE and I did discuss potential accommodations. Personally I think the accommodations they're asking for are modest and reasonable; some of them are practices that should be in place at any workplace and govern any supervisor/report relationship. (They are not in place at this workplace but that is another Ask entirely.) I'll be meeting with SU and ED to review these, and then we'll have a meeting with EE to discuss implementation. Right now I'm mainly focused on documenting the process and framing the requests tactically so that SU can't justify not meeting them (e.g., one requested accommodation was as much advance notice as possible of new projects, which strikes me as reasonable but also hard to enforce).

We definitely do need a policy on providing accommodations but that is another can of worms entirely.

Anyway, thank you all again for your time and insight. I really really appreciate it.
posted by Fish, fish, are you doing your duty? at 12:03 PM on September 2, 2018

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