ADA Compliance - Six Steps For Your Spa
Is your spa compliant with the ADA? Our laws and our culture recognize the dignity of those with physical, developmental and intellectual challenges, and their right to be free from unlawful discrimination. But as the definition of “disability” continues to expand, employers often must make difficult decisions about protecting their customers and their business without running afoul of the Americans with Disabilities Act (ADA).
The key language is: can the individual perform the essential functions of the job with or without “a reasonable accommodation that does not fundamentally alter the nature of the goods and services provided, or create an undue risk to the individual or others?” If not, then the law allows an employer to “discriminate” by not hiring that person. In determining what is “reasonable,” cost may be taken into consideration, as well as the job in question, industry and physical layout of your facility.
While ultimately the final decision always rests with the employer, by adhering to the following six steps, spa owners can significantly increase their chances of complying with the ADA as well as properly defending themselves if they are ever accused of an ADA violation:
- While it is clearly UNLAWFUL to ask a prospective employee about a disability, once a conditional offer is made, an employer can ask the key question: “Is there anything that would prevent you from performing the essential functions of the job with or without a reasonable accommodation?”
- If the answer is no, there can be no further inquiry unless there is an obvious situation (a silly example would be a person hired to lead nature hikes who uses a wheelchair). Once you are made aware of the disability, if you have any concerns about the employee’s ability to function with or without an accommodation, you are free to discuss the issue directly with the individual. There is no need to beat around the bush. The key is to phrase all questions in terms of your desire to make a reasonable accommodation and to treat each person individually. Statements such as “we don’t hire people with epilepsy” are a big no-no and will get you in trouble every time.
- If after this conversation you have any concerns, you can insist on speaking with the employee’s health care provider. To do so, the person must give permission to the provider in the form of a written release. If the person refuses to do this, the inquiry is over, and you can refuse to accept the person on the grounds that he/she is refusing to allow you access to the information you need to comply with the law.
- When speaking with the health care provider (if you have an in-house medical staff you should include them in the conversation), be careful not to ask questions such as, “Doctor, do you believe this person can fulfill the requirements of the job?” The reason is simple. First, the doctor will almost never disagree with his patient and 99.9% of the time will give his/her stamp of approval. Second, when it comes to your facility, it is you – not the doctor – who is the expert and who has the final say, and just how a doctor would not ask you a medical question, you should not ask a doctor’s opinion about running a spa. As we know, each business is unique and no one knows it better than you do, and in the end, asking the doctor to decide the ultimate question will provide little guidance while getting you in trouble if you disagree with his/her assessment. Instead of delegating the decision to the doctor, talk about your concerns, and ask questions directed to the job functions, programs, schedules and facilities of your particular spa. Once armed with the answers, you are ready for the next step.
- Discuss any remaining concerns with the employee. What accommodations are you able to make? Or are you unable to make any that are reasonable? Always phrase the discussion in terms of your desire to make this work, if possible, and in terms of the safety of the staff member, his/her co-workers, and your customers. If you agree with an accommodation, make the plan as specific as possible. There is nothing wrong with a “trial period” to see if the plan will work, if it needs adjustments, or if the experiment has failed.
- It is essential that all discussions, whether with a healthcare or employee, focus on the person. In other words, avoid stereotypes. The main thrust of the ADA is that each employee must be treated as an individual rather than as a member of a group.
ADA-related decisions are often difficult. They must balance your personal desire to provide opportunities to individuals with disabilities along with your need to provide a safe environment for customers and staff. By following these steps, you will help shield yourself from a discrimination claim. More importantly, you will likely garner the information you need to make good decisions.
Are you an AMSkier client? If so, I am always available to shepherd you through ADA issues from start to finish. Clients faced with a specific question, or who need step-by-guidance, please call me at (570) 226-4571.
Alan Cooper, Esquire, AMSkier General Counsel, Claims Director
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