In this episode, Eva and Chloe discuss why and how to set up a disability accommodation policy if your farm employee manual. We get into why and how to use your employee manual to communicate about disability accommodations effectively and equitably with all of your farm employees to promote a healthy workplace while protecting against the risk of a discrimination claim.

Recommended Resources:

• Episode 77: Accommodating Employee Disabilities on the Farm and Ranch
• Model Farm Employee Manual
• That’s Unreasonable! Making Sense of the ADA on the Farm

TRANSCRIPT:

Eva: Hi, Everyone, welcome to, or back to the Farm Commons podcast. I’m here today with our Staff Attorney, Chloe, to cover why and how to address disability accommodations in a farm employee manual. In Episode 77, Bonita and I covered 5 steps for proactively managing accommodations for employees to create an inclusive, accommodating workplace at your farm or ranch to minimize legal and financial risks while supporting employee retention. Today, Chloe and I are going to get into why and how to use your employee manual to communicate about disability accommodations effectively and equitably with all of your farm employees. How’s that plan sound to you Chloe?

Chloe: Hello Eva, and to everyone tuning in, I am glad to be back on the podcast with you all. Eva, your plan sounds great. Let’s get into it!

Eva: Let’s start with a bit of background. First, let’s cover what an employee manual is, from a legal perspective, and then let’s get into why and how to set up a clear disability accommodation policy.

Chloe: Many farmers and ranchers with a team of employees will likely have some version of an employee manual in place; for those who don’t, you should know that an employee manual is a great tool for boosting your legal resilience. It enables you as the employer to set clear expectations to create a smooth work experience for you and your employees. By creating a written record, the farmer, supervisors, and employees can be on the same page about procedures. A manual also provides a neutral route for resolving issues. However, a farm employee manual is only helpful if it is up to date and specific to your business.

Eva: For sure, an employee manual can cover the purpose, history, and philosophy of the farm business. In this way, it’s like a cultural and historical orientation for new employees. Then there’s the meat and potatoes of the manual, the policies addressing everyday real issues that are a part of the job:

• Inclement weather
• Payroll
• Timecards
• Days and hours of work
• Days off and leave
• Benefits
• Employment policies
• Safety
• Attendance policy
• Termination
• And more…!

For a full list check out our Model Farm Employee Manual available on our website, also linked in the show notes.

Chloe: Thanks, Eva. That’s a good list to help listeners imagine what their manual can cover. I think most farm operators can quickly understand the value of policy topics like set work hours, but may not have considered setting up a policy for inclement weather, for example.

Eva: For sure, inclement weather is becoming a more common issue to manage as the weather becomes more erratic. For example, there are farmers out on the West coast who have an inclement weather policy for fire season where smoke affects work hours. But let’s pivot our attention back to disability accommodations. The farm employee manual can include a disability accommodation policy that sets forth the exact process an employee can go through to request an accommodation, including the steps involved for review, approval, and adjustment, as needed.

Chloe: Yes, exactly. I know you and Bonita went into detail in the previous episode about what is legally considered a disability and when accommodations are required, so I will only go so far as to give a quick reminder of the general framework now. Any employer with enough employees to be covered by the ADA is required to provide a reasonable accommodation to any employee or applicant with a legally defined disability that can perform the essential functions of the job. If the accommodation causes an undue hardship, then the accommodation request doesn’t have to be granted, but employers are required to try to find a solution unless there is a direct threat of harm to anyone on the team.

Eva: Thanks for that review Chloe. We’ll make sure to link that previous episode in the show notes for everyone to reference. You mentioned undue hardship–should the employee manual also describe what accommodations would pose an undue hardship?

Chloe: Okay, so this is both the wonderful and frustrating thing about the concept of undue hardship: It is situation-dependent. There’s no way to guess or clearly state what types of accommodations would cause a business an “undue hardship.” In fact, writing in too much detail in the policy manual could lead to policies that aren’t flexible enough to stand the test of time. The best bet is to add a policy confirming the farm’s intention to follow the law as laid out in the ADA, with some additional information that we will talk about in a moment.

Eva : I can imagine just seeing the policy clearly stated in the manual might put employees at ease, so they know there is a process for requesting help to do their job properly, if they need it.

Chloe: Exactly! These policies benefit everyone. The employer learns by having to write it down, and then is more prepared if an employee does make an accommodation request. On the other hand, the employee knows what to expect if they need help to do their job. And one thing employees should expect is that the burden to make an accommodation request is on them, the employee. That’s because, in general, we don’t want employers going around asking their employees for or about sensitive, private health information or conditions. A good policy should advise employees that they are responsible for making a request, and that they have to disclose that they have a disability–and, the policy should make it clear that any health information shared will be kept confidential.

Eva: Can employers ask about the details of a disability? They may not intentionally pry, but if it does happen is that okay?

Chloe: Employers do have the right to request medical information about the disability and the need for an accommodation. Again, all of this information must be kept confidential and maintained in its own file. Employers should even strive to keep other employees from knowing about the accommodation. This may or may not be possible, but either way, the only thing that should be discussed with other employees is that all employees are entitled to assistance if there are issues with the workplace. Never disclose medical or accommodation details. Some other quick additions to the policy:
The policy should state clearly who it is that employees should contact to request an accommodation,
Should set out a reasonable expected timeframe for response,
Best practice→ submit the request in writing

Eva: What if the employee needs the job to be restructured to accommodate them – let’s say they maybe aren’t able to stand out in the sun anymore or aren’t able to lift heavy objects?

Chloe: That’s a great question. This policy is for folks who are ‘qualified’ for the job, so that has the traditional meaning that we are all likely thinking of –having the skill and experience to meet the job’s requirements, but this employee must also be able to perform the essential functions of the job. So a very important thing for employers to do, and this isn’t necessarily part of the employee manual but they should be written down– are true-to-the-job job descriptions. These descriptions should clearly list the essential functions of the job. If an applicant or employee cannot fulfill those essential functions with or without an accommodation, then they aren’t qualified for the position and don’t have to be hired or retained. Accommodations are designed to allow folks to complete the essential functions of a job.

Eva: A common ‘essential function’ of a farm job would be the ability to lift 50 pounds to move fertilizer, feed, etc.. So if a person can’t do that, they aren’t qualified, and this ADA policy wouldn’t apply to them?

Chloe: Well, it isn’t quite that simple. For starters, there are lots of ways 50 pounds can be moved that don’t necessarily involve a person picking up the bags and carrying them long distances, so even this “essential function” could potentially be altered to accommodate an employee with disabling chronic back pain, say, but, yes, in general if there is no reasonable accommodation that would allow an employee to complete an essential function of the job–they aren’t qualified for the position.

Eva: Okay let’s get back to the employee manual, are there other things in the manual that would support the Disability Accommodations Policy?

Chloe: Well, yes. One other thing I’d suggest putting in an employee manual that isn’t directly related to the disability accommodations policy is a behavioral policy. Mental health conditions and substance abuse disorders can be considered disabilities under the ADA. However, employees can be held to job-related behavioral policies that have a business necessity whether or not the violation of the behavioral policy was due to an ADA-eligible disability. Put another way, allowing violations of necessary, job-related behavioral policies isn’t a reasonable accommodation that employers have a responsibility to provide. The ADA won’t protect a violent or threatening employee no matter their diagnosis, but employers can include policies in their manuals that limit lesser, but still disruptive behavior as well. And, a note on substance abuse disorders–the ADA does not require accommodations for employees who are currently using illegal drugs. And employees that are suffering from a substance abuse disorder from a legal substance–like alcohol–can’t excuse poor performance on the basis of their substance abuse disorder disability. So, the advice here is to have behavioral policies that apply equally to everyone to protect the business and other employees if an employee becomes unduly disruptive or dangerous with their behavior.

Eva: Any final tips for the employee manual?

Chloe: I want to state clearly that employers cannot policy over the ADA. No business can write a policy that says employees have to agree to give up their ADA rights to work for the business. All businesses that have to comply with the ADA–which depends on the size of the business and what state you are in– have a legal responsibility to at least follow what the ADA lays out. The ADA sets the floor, a business can’t offer less that the ADA provides for. Businesses can write policies that exceed the ADA’s rules, but not ones that don’t meet the ADA’s standards.

Also ADA rules for businesses that are open to the public are different..

Eva: Can you just quickly list off some reasonable accommodations you’ve heard about on farms, even though we know each accommodation is very situation-dependent?

Chloe: Sure, I can give some examples, but I can’t do that without restating what you just said–it still bears repeating–this is a very individualized, circumstance-based process. It might be reasonable for a large farm business with many assets to provide ASL interpretation at morning meetings, whereas that would be an undue hardship for a mid-size farm; this is in no way one size fits all. But, some common accommodations that could be applicable on farms are adjusted work schedules, extra breaks, scheduling so employees can go to medical appointments, reassignment to jobs that don’t require standing for 8 hours a day, purchasing ergonomic tools, respirators, or instituting the use of dollies instead of requiring folks to carry heavy objects around the farm, utility vehicle to assist in getting around the farm, etc…

Those are all relatively easy, depending on the cost and financial status of the business.

Eva: Those are helpful examples, and of course, accommodations will look different for each individual. The range of disabilities is so large–Cancer, blindness, deafness, PTSD, ADHD, epilepsy, and basically any health condition that significantly impairs daily life activities can be considered a disability, so farmers who take the time to layout a process for their employees to request an accommodation will not only be more resilient to a potential discrimination claim but also will be better employers for anticipating potential needs of the people doing the work on their operation. Disabilities are a part of life, and can be even more common for jobs like farming and ranching that are physically intensive.

Chloe: For sure. Disability accommodations are an important consideration for any farmer or rancher who is hiring employees. A business is more resilient when it takes care of its team, and an employee manual is one tool to help you do that well and with the least amount of stress during a crisis or at a time when you need to be making hard decisions..

Eva: We encourage you listeners to check out our Model Farm Employee Manual to get an idea of how to set yours up, and also be sure to read That’s Unreasonable! Making Sense of the ADA on the Farm, which was written by Chloe and will help you navigate the process of figuring out what accommodations are reasonable for your business and your employees.

Chloe: Thanks for joining us! Bye!

This material is based upon work supported by USDA/NIFA under Award Number 2023-70027-40444.