The Job Accommodation Network (JAN) is a free consulting service for workplace accommodations and compliance with the employment provisions of the Americans with Disabilities Act (ADA). Last year we provided consulting services to over 47,000 customers, mainly employers and employees with disabilities. Hearing from both sides of the accommodation process enables us to follow national trends and also helps us identify barriers to successfully navigate those trends. One of the trends we've noticed in the past few years is an ongoing increase in the use of third-party vendors to process accommodation requests.
Many employers assign the human resource (HR) department the task of processing employee accommodation requests. However, busy HR departments may have difficulty keeping up with the requirements of the ADA and processing accommodation requests in a timely manner. As a result, some employers are hiring vendors to take over the accommodation process. There can be multiple benefits to having a third-party vendor process accommodation requests, including consistency, a streamlined process, and expert legal knowledge.
However, that doesn't mean that an employer should just hire someone and step away from the process. If the vendor doesn't have the knowledge or skill to process accommodation requests correctly, the employer will be liable for any violation of an employee's rights under the ADA. In addition, there are multiple benefits employers can reap from providing effective accommodation, so employers may want to make sure that whoever processes accommodations does more than the minimum required under the ADA.
Some of the problems that we've heard can occur when using third-party vendors include:
- Employees being uncomfortable calling a third party and talking about their disabilities
- Employees feeling unsupported in their efforts to get an accommodation because they don't feel connected to the vendor, often due to lack of effective communication
- Vendors asking for medical information beyond what's allowed under the ADA or for medical information the employer already has
- Employees having to start over with their existing accommodations because the employer hired a vendor
- Accommodation requests being denied without explanation and without a process to appeal the decision
- Employers refusing to talk to employees about their accommodation requests and insisting that employees talk to the vendor only
- Employees feeling confused because they are told to contact one vendor about leave requests and another about accommodations, and having to provide the same medical information to both
So what can employers do to help ensure that they reap the benefits of hiring third-party vendors while reducing the risk of an ADA violation? The following are some practical tips for employers to consider:
Before Hiring a Third Party-Vendor
With the proliferation of third party vendors, employers have the opportunity to shop around and find a vendor that meets their needs. For employers who want to explore the possibility of using a third party vendor to process accommodation requests, a question we often get is where to find the vendors. Although JAN doesn't recommend or endorse specific vendors, we do maintain a list of the vendors we're aware of.
Once you identify the vendors that offer the type of services you need, some of the things you might want to consider when searching for the right vendor include:
- Is the vendor knowledgeable about the ADA and other relevant laws? Because an employer remains liable if a vendor violates the law when processing accommodation requests on behalf of the employer, it's important to assess the vendor's understanding of the ADA and other relevant laws. If the vendor has experience in processing accommodations, one thing you might ask is to have the vendor provide you with an example or two of previous work.
- What is the vendor's overall attitude toward reasonable accommodation? Is it compatible with your attitude and workplace culture? Does the vendor err on the side of caution and provide reasonable accommodations even if they're not clearly required under the ADA?
- Does the vendor have an established interactive process for responding to accommodation requests? If yes, you might ask the vendor to walk you through the process.
- How will the vendor communicate with employees so they feel comfortable and supported throughout the process?
- How will the vendor handle employee accommodations that are already in place so employees do not have to restart the accommodation process?
- What is the vendor's approach to medical documentation? How much information does the vendor plan to require from an employee's healthcare provider? How will the medical documentation be stored in compliance with ADA confidentiality requirements?
- How will the vendor assess whether an accommodation will be effective in your workplace or whether it will pose an undue hardship? Will you have a point of contact to help make such assessments? Will the vendor be coming into your workplace to make assessments?
- How will the vendor deal with overlap with other laws such as the Family and Medical Leave Act or Workers' Compensation? Will the vendor be involved in all requests for leave or just those that potentially fall under the ADA? Will the vendor be informed when employees receive Workers' Compensation?
After Hiring a Third-Party Vendor
Once you choose a third-party vendor, there are things you may want to do before the vendor actually starts processing accommodations:
- Establish points of contact. Who in your workforce will communicate with the vendor and oversee the vendor's work?
- Decide what workplace policies the vendor needs to know about and how you will educate the vendor about those policies. For example, if you give all employees ergonomic equipment upon request, the vendor needs to know that so an employee with a disability doesn't have to go through the interactive process to get ergonomic equipment. Or if you have telework or flexible schedule policies, the vendor needs to know what they are.
- Ask the vendor to come to your workplace to meet your employees so they know who they're contacting if they need an accommodation. At the same time, you can educate the employees about the process for requesting accommodations with the vendor.
- Decide whether you will sign off on all accommodations or whether you just want to review denials, and how this oversight will take place.
- Appoint someone to serve as the employees' point of contact if they have issues with the vendor. This person should probably be the same person who serves as the point of contact with the vendor, or at least someone in direct communication with that person.
- Decide if you will have an internal appeals process for employees who are not satisfied with the outcome of the vendor's accommodation process.
Overall, third-party vendors can help you in your efforts to comply with the ADA and provide effective accommodations, but you'll need to stay involved in the process and keep the lines of communication open. You are the one who must make sure that your employees get the accommodations they need to be productive and enjoy the benefits of employment you offer to all employees.