Can an employee waive his her right to a reasonable accomodation

[NOMOREPROSE]

What is the name of your state (only U.S. law)? PA

I gave up law so I don't practice or do much research but an interesting concept came to me through a relative of mine who asked me to look at an employment agreement she signed. In her agreement,

It states that "all requests for accomodation must be in writing to the president within 180 days of the known disability.


My basic research says that this is not a valid statement under the ADA but I do agree that it is wise to put an accomodation in writing, however its the 180 day time limit that does bother me.

My reading of the ADA is that you can ask for an accomodation at anytime and it does not have to be in writing.

She wants to take the agreement to the Human Rights commission but I told her to give them a chance to give her an accomodation in the first place before she does that? She thinks it's a bad policy in general. Any input? Do you have to suffer an adverse action or a denial first or are the civil rights commissions like the EEOC have an interest in policies that violate the act in itself? Appreciate any thoughts.

 

[FlyingRon]

She doesn't have any standing to take anything anywhere unless she

1. Has a disability.
2. Requests one that is reasonable and not accommodated.

All she has to do is say she needs something as a result of her disability.

She can gripe about the stated policy, but until they enforce it in violation of the law it's just puffery.

 

[cbg]

Not a lawyer but an HR professional of closer to 40 years experience than I want to admit.

I agree with you that this policy is unenforceable - I hesitate to call it illegal. It has been my experience that most government agencies will tell an employer that they can have whatever policies they want to - at least up front. But if the employer attempts to enforce a policy that violates a regulation, that's when the agency will jump in with both feet. I've never specifically run up against the EEOC on something like this, but the EEOC is overworked and understaffed and I have no reason to believe they would vary from the usual position.

Which means that until she requests an accommodation and is denied, she really has nothing to go to the EEOC about. They haven't violated any regs in HAVING the policy - it's if they attempt to deny an accommodation for the sole reason that it wasn't requested within 180 days of onset that there's a violation.

So "she" - whoever she might be - should request an accommodation if one is needed. If it's approved, no harm no foul. If it's denied because no reasonable accommodation exists, that's legal too. But if it's denied because, while a reasonable accommodation exists, it's been more than 180 days since the onset of the disability, tell her to give it everything she's got - EEOC, state human rights board, anything else either of you can think of, with my blessing and enthusiastic endorsement.

 

[LdiJ]

Not a lawyer but an HR professional of closer to 40 years experience than I want to admit.

I agree with you that this policy is unenforceable - I hesitate to call it illegal. It has been my experience that most government agencies will tell an employer that they can have whatever policies they want to - at least up front. But if the employer attempts to enforce a policy that violates a regulation, that's when the agency will jump in with both feet. I've never specifically run up against the EEOC on something like this, but the EEOC is overworked and understaffed and I have no reason to believe they would vary from the usual position.

Which means that until she requests an accommodation and is denied, she really has nothing to go to the EEOC about. They haven't violated any regs in HAVING the policy - it's if they attempt to deny an accommodation for the sole reason that it wasn't requested within 180 days of onset that there's a violation.

So "she" - whoever she might be - should request an accommodation if one is needed. If it's approved, no harm no foul. If it's denied because no reasonable accommodation exists, that's legal too. But if it's denied because, while a reasonable accommodation exists, it's been more than 180 days since the onset of the disability, tell her to give it everything she's got - EEOC, state human rights board, anything else either of you can think of, with my blessing and enthusiastic endorsement.

What makes me wonder is if someone has a progressive disease? One where they are diagnosed, but it ends up being several years before their disability progresses to the point where they actually need some sort of accommodation. That is where I can see a policy like that one totally failing on the merits.

 

[FlyingRon]

Again you can't get anywhere just because there's a stated policy that is contrary to the law in most cases. There are in fact many places that still have restrictive covenants in place, even though they are clearly illegal under the law. However, unless one is used to deny someone being able to purchase the property or live there, there's nothing actionable about them still being place. Illegality takes an ACT.

 

[NOMOREPROSE]

Again you can't get anywhere just because there's a stated policy that is contrary to the law in most cases. There are in fact many places that still have restrictive covenants in place, even though they are clearly illegal under the law. However, unless one is used to deny someone being able to purchase the property or live there, there's nothing actionable about them still being place. Illegality takes an ACT.

I agree, I told her to not bring the issue up until she feels that her condition warrants it and to give them a chance to comply. However this agreement was signed in 2014 and I find it risky on such a large company to put this in an agreement considering that the ADA was enacted over 20 years ago. I searched the company and they have had prior eeoc consent decrees. Just imo this writing which is in both her agreement and employee handbook, may give people in management and those in need of assistance the wrong impression when applying the laws. To each his own I suppose. Enjoy your weekend.

 

[cbg]

What makes me wonder is if someone has a progressive disease? One where they are diagnosed, but it ends up being several years before their disability progresses to the point where they actually need some sort of accommodation. That is where I can see a policy like that one totally failing on the merits.

Exactly, L. But it's still quite unlikely, at least in my experience, that the EEOC would order the employer to change their policy or fine them for having it; it would still take someone being harmed by the policy before they would be likely to take action.

 

[LdiJ]

Exactly, L. But it's still quite unlikely, at least in my experience, that the EEOC would order the employer to change their policy or fine them for having it; it would still take someone being harmed by the policy before they would be likely to take action.

That does make sense to me.

 

[defendmyself]

I dont like this phrase either in her employment contract but if she has to file a complaint i would brimg this to the agencies attention, eeeoc has intervened in systemetic violatons which can include policy but it would normally be done if mamy people are effected not just one