Expert legal voices Amy Epstein Gluck, Esq., founding partner at Pierson Ferdinand LLP, and SHRM’s Allen Smith, J.D., share best practices in applying the Americans with Disabilities Act (ADA) across the full employee lifecycle, from recruitment to post-employment. Starting with their own personal experiences with managing a disability, they join host Monique Akanbi to tackle real HR dilemmas in compliance, accommodation requests, performance management, and more — including answering top ADA questions straight from SHRM's HR Knowledge Center. This podcast is approved for .5 PDCs toward SHRM-CP and SHRM-SCP recertification. Listen to the complete episode to get your activity ID at the end. ID expires August 1, 2026. Subscribe to Honest HR to get the latest episodes, expert insights, and additional resources delivered straight to your inbox: https://shrm.co/voegyz --- Explore SHRM’s all-new flagships. Content curated by experts. Created for you weekly. Each content journey features engaging podcasts, video, articles, and groundbreaking newsletters tailored to meet your unique needs in your organization and career. Learn More: https://shrm.co/coy63r
Expert legal voices Amy Epstein Gluck, Esq., founding partner at Pierson Ferdinand LLP, and SHRM’s Allen Smith, J.D., share best practices in applying the Americans with Disabilities Act (ADA) across the full employee lifecycle, from recruitment to post-employment. Starting with their own personal experiences with managing a disability, they join host Monique Akanbi to tackle real HR dilemmas in compliance, accommodation requests, performance management, and more — including answering top ADA questions straight from SHRM's HR Knowledge Center.
Expert legal voices Amy Epstein Gluck, Esq., founding partner at Pearson Ferdinand LLP, and SHRM’s Allen Smith, J.D., share best practices in applying the Americans with Disabilities Act (ADA) across the full employee lifecycle, from recruitment to post-employment. Starting with their own personal experiences with managing a disability, they join host Monique Akanbi to tackle real HR dilemmas in compliance, accommodation requests, performance management, and more — including answering top ADA questions straight from SHRM's HR Knowledge Center.
This podcast is approved for .5 PDCs toward SHRM-CP and SHRM-SCP recertification. Listen to the complete episode to get your activity ID at the end. ID expires August 1, 2026.
Subscribe to Honest HR to get the latest episodes, expert insights, and additional resources delivered straight to your inbox: https://shrm.co/voegyz
---
Explore SHRM’s all-new flagships. Content curated by experts. Created for you weekly. Each content journey features engaging podcasts, video, articles, and groundbreaking newsletters tailored to meet your unique needs in your organization and career. Learn More: https://shrm.co/coy63r
[00:00:00] Monique Akanbi: Welcome to Honest HR. I'm your host, Monique Akanbi. Did you know that the American with Disabilities Act, also known as the ADA, was signed into law on July 26th, 1990? And while it has transformed the workplace, many HR teams are still faced with real questions about how to apply it, especially as ADA continues to be adjusted over the years.
Today we're focusing on HR guidance around ADA and is as it relates to before, during, and after the employee lifecycle. So in other words, during the recruiting and hiring process. While employees are actively working in their roles and then leading up to and after an employee's departure from their organization, we're going to focus our insights and advice mostly on legal compliance.
In other words, what the law requires all employers do for individuals with disabilities. Along the way, we'll answer some top ADA questions. SHRM gets through our HR knowledge center from our members for our conversation today, we're joined by two experts, Amy Epstein Gluck, a partner at the Pearson Ferdinand Law Firm and chair of the employment Labor and Benefits team.
And SHRM's own Allen Smith, who covers employment, law, news, and trends on our content team. Welcome to Honest HR, Amy and Allen.
[00:01:52] Amy Gluck: Thank you.
[00:01:53] Allen Smith: Thanks.
[00:01:54] Monique Akanbi: So Amy, just to set the stage, if we could, I'd love to start our conversation more on, no pun intended, human level. for a lot of people, the ADA is a legal framework, but for you, it's also personal.
Can you tell us about your connection to working with the ADA and why it means so deeply to you?
[00:02:18] Amy Gluck: Sure. Thank you for that question, Monique. It's not one that I'm asked often. so I generally, I'm a management side lawyer and I help employers comply with the ADA and state anti-discrimination laws.
I've always been focused in that capacity with de-stigmatizing the idea of mental health, disabilities so that employers can comply with their legal obligations. This became quite personal to me with the birth of my third child. My son Sam. Sam was born with no vision at all, and while his vision resolved, he remains extremely myopic.
One of those employees who has an invisible disability that nobody would know about unless he told them. I have another child who struggles with mental health disabilities, and I've talked to her over the years and worked with her over the years about asking for the reasonable accommodations she needs, both at school, of course, and in the workplace.
So, yes, it is quite personal to me on both a personal and professional level.
[00:03:32] Monique Akanbi: Thank you for sharing that, Amy. Allen, I believe that you have experience as well. Would you like to share kind of your personal connection to ADA?
[00:03:43] Allen Smith: Sure. while it's true that I have a mobility impairment. I think it's also fair to say that for the most part it's irrelevant for work purposes, that I have a mobility impairment.
I do require occasional accommodations, things like, Occasional time off for medical appointments or just something as simple as a chair at get togethers. but I think it's the rare employee that doesn't need an accommodation of some kind, particularly when there are so many people with disabilities.
[00:04:22] Monique Akanbi: Yeah. Thank you for sharing that. For both you, Allen, and Amy, can you share your thoughts? Amy can go first on why, ADA remains such a pivotal piece of legislation for workplaces today.
[00:04:40] Amy Gluck: Of course, of course. The ADA is a cornerstone of workplace equality and inclusion. At its core, the ADA ensures that individuals with disabilities have equal access to employment opportunities, which benefits those individuals and enriches our workplaces with different perspectives and talents.
The law sets clear standards for reasonable accommodations, prohibits discrimination, and requires employers to engage in an interactive process. For HR teams, since you asked, understanding the ADA is not just a matter of legal compliance, it's also a strategic imperative. The law continues to evolve through new regulations and court decisions, so staying current is essential to avoid expensive litigation as well as reputational damage.
More importantly, and. Believe me as an employment side, an employer side lawyer, I see this all the time. HR professionals are often the first point of contact for an employee who is seeking a reasonable accommodation or experiencing barriers to equal access in the workplace. So hrs knowledge of legal requirements is really pivotal to minimize risk.
[00:06:00] Monique Akanbi: Allen, any thoughts on that?
[00:06:03] Allen Smith: I couldn't agree more with all that Amy said. And I'd just like to add that the ADA, like any law, is evolving as times change. what it's meant to be a reasonable accommodation changes. first there was, the internet and that affected things like. Career job sites and now there's ai and that affects things like, how many different types of new accommodations are available that maybe weren't available before, even as it also creates new barriers.
So I think it's, important too. Keep up to date on the law as it evolves.
[00:06:51] Monique Akanbi: Thanks for sharing that. so I mentioned that we're going to cover ADA, and during the entire, employee life cycle, so I, like to get started, at the beginning, which is the recruiting and hiring phase. and as a reminder, SHRM members have access to a plethora of ADA resources, for the entire employment lifecycle, including how to guide toolkits.
Customizable policies, checklists, forms, and more. I will say when I practice h HR, going to the SHRM website and utilizing those resources, whether it was for ADA or anything else that was, relevant to my role, SHRM was definitely my go-to. Amy, what do HR teams need to do when it comes to ensuring ADA compliance during the recruiting and hiring phase?
[00:07:43] Amy Gluck: First, HR must ensure that all job postings and application materials are accessible to applicants with disabilities, which includes providing alternative formats or accessible online platforms. During interviews and assessments, HR really needs to be prepared to offer reasonable accommodations like sign language interpreters, or extended time for written tests, or, in the case of my son who we were talking about, maybe larger font in a written application, if it's requested.
It's also important for HR to train hiring managers. You take away nothing else. That is really my mantra. Train your middle manager, train hiring managers to avoid questions that could elicit information about an applicant's disability, and to focus instead on the applicant's ability to perform the essential functions of the job.
Throughout the process, HR should maintain clear communication with applicants about their rights and the availability of accommodations.
[00:08:53] Monique Akanbi: So I have a follow-up question for you, Amy. you mentioned, when those requests are made, so in, during the recruiting, process, so if I'm an applicant who has a disability, how do I go about letting the HR team, or how does the HR team create a process so that way applicants can, can share the needs during just even the application process?
Is there something that HR teams can do?
[00:09:22] Amy Gluck: I mean, I like when I see a job posting, if it doesn't have a little disclaimer at the bottom, I, think it should be added that if the application there needs to be an appli an accommodation to access the application or to fill it out, then the employee just needs to touch base with HR or the hiring manager and they will help them out.
[00:09:48] Monique Akanbi: Thank you, Allen. What are some common, oversight or, missteps that HR teams, tend to make during this process, during the recruiting and hiring process?
[00:10:02] Allen Smith: Yeah, I would just add that with the use of, AI in the screening process these days? ai, if it's not used with hi, that is human intelligence, can screen out people based on irrelevant factors when it comes to being able to perform the essential job functions like someone may stutter.
Or someone may not be making eye contact much, and AI may screen the person out because of these physical characteristics that have nothing to do with the person's ability to do the job with or without reasonable accommodation. So I think that's a big one.
[00:10:46] Monique Akanbi: I'm glad you brought that up, Allen, because my next question for Amy, is actually around, the components of ADA where, they talk about essential job functions and marginal job functions.
Amy, could you share, the difference between the two and what that distinction, why that distinction matters for HR teams under ADA.
[00:11:10] Amy Gluck: Absolutely, and I wanna stress Monique, all these questions are great and they're common questions that I get every day in practice. So the difference between essential and marginal job functions are the fundamental, are the actual duties of a position.
Essential job functions are fundamental to the position, like you can't do the position without those duties. They're critical to the job's purpose. They cannot be removed without fundamentally changing the role. On the other hand, marginal job functions are duties that are not central to the job, and they can be reassigned to another employee or even eliminated without significantly impacting the position.
you ask why is this important for HR teams under the ADA? It's a distinction with a difference, and it's important for HR teams to know because employers must provide reasonable accommodations to enable people with disabilities to perform essential job functions, but not necessarily marginal ones.
Clearly identifying which duties are essential helps ensure fair hiring practices and protects the organization in the event of a legal challenge. It also guides HR in making appropriate accommodation decisions and in drafting accurate job descriptions.
[00:12:41] Monique Akanbi: Okay, so I have. Gone through the application process, I am now hired, Allen.
this question is for you, which is a common question that we receive from our knowledge center, which is what exactly is the process for handling an incoming employees request for ADA accommodation?
[00:13:03] Allen Smith: Well, the short answer is the interactive process for, discussing an accommodation, which basically is just fancy language for a conversation.
And, one important step two is recognizing that an accommodation request has been made because a person doesn't have to use the words reasonable accommodation and sometimes even. Accommodation request maybe should be obvious and the person may not even have to say, that. but usually they have to indicate help in some form or other.
But, Back and forth discussion between the employee and the employer, and it's not a one and done thing. You may try one accommodation and it may not work out, or you might try one accommodation and it may work out for a while, but then. Start to not work at a certain point in time, maybe the person's condition has changed, at which point you just don't stop.
You reengage. And it's not an endless process either, but it is an ongoing process.
[00:14:19] Amy Gluck: Can I add to that for a minute, Monique?
[00:14:20] Monique Akanbi: Sure, absolutely.
[00:14:22] Amy Gluck: So I like to say is it's not a one and done and another very typical question I get. about this, about what Allen said in terms of it being an ongoing process is, well, when it, when can we stop?
Right? When is enough enough? And what I will tell you, my HR people since you are my people, is don't be the cause of the breakdown of the ind of the interactive process. There's no bright line, there's no timeline on it.
[00:14:55] Monique Akanbi: Well, those are certainly words of wisdom. and Allen, you said something that, really stood out to me, which is, trying out different accommodations.
I think oftentimes, as people, managers or HR professionals, we, sometimes get caught into thinking of one way of providing an accommodation. And if that doesn't work, Maybe, abandon, the, process in terms of trying to identify another way. So I love that you mentioned, multiple ways of identifying or trying out accommodations, to the benefit of the employee or the individual with the disability.
so I'm ready to go into the next phase of the employee life cycle, which is during employment. now Amy, our SHRM Knowledge advisors, have noticed a significant increase in employees requesting remote work as ADA accommodation, particularly in the area of mental health conditions and chronic illnesses.
so how should HR navigate these kinds of requests?
[00:16:09] Amy Gluck: That's a great question. Monique and I have been writing about this for the Pearson Ferdinand, employment blog since 2020. Right. It is, there's such an uptick in requests for remote work as an ADA accommodation since really the pandemic, when everybody was working from home.
Not only that, we've seen a, just a meteoric rise in the disclosure of mental health conditions. That's not a bad thing. In fact, I would say that's a good thing that people are. Disclosing mental health conditions and saying to their manager, Hey, I need time off to go to therapy. Right? So, but to your question, when an employee requests remote work as an ADA accommodation, HR really needs to approach each request on a case by case basis, engaging in an interactive process with the employee to understand their specific needs and limitations.
It's an individualized assessment. It's not a cookie cutter type of process where you've provided one accommodation for one person. Another employee's gonna get the same. It is important to assess whether remote work would enable the employee to perform the essential functions of the job without causing undue hardship to the organization.
So when considering a request for remote work and engaging in the interactive process, HR should consider that as well as the job description to see what the essential functions are, past practices, and consult with managers to see if remote work is a reasonable and effective accommodation. Clear documentation of that process and decisions is essential.
I cannot stress enough how important it is to maintain documentation of the steps that you took to ensure the employee could be successful. now when I mention consulting with managers to determine if remote work is reasonable and effective. You know, when somebody is working from home managers still have to manage.
And what we saw during the pandemic was that people, for a large part, were as effective working from home as they were in the office or in the workplace to the extent that they could work from home. So it may require some tweaking with management styles and tools to manage people working from home.
[00:18:48] Monique Akanbi: So question for, follow up, actually, Amy, for you is that, can an employer deny a work from home request as an ADA accommodation?
[00:18:59] Amy Gluck: So if, if in-person attendance is an essential function of the job, then yes they can. Right? So for that, what are we talking about? Security guards, waiters, cashiers a driver. A driver's not gonna be able to work from home. So HR doesn't have to remove, the employer doesn't have to remove essential job functions, but it may need to reassign marginal ones like we talked about before.
So what you need to see during the interactive process is if the employee's job can be done effectively from home. Now, understand that an employer can suggest an alternative to working from home. and several factors should be considered in de in the, in determining the feasibility of whether an employee can work from home.
And if any duties require use of certain equipment or tools that can't be replicated at home. Other critical considerations include whether there's a need for client facing interaction. Any face-to-face interaction in person with customers or any colleagues at time, or if an employee needs to have immediate access to documents or other information located only in the workplace, or that can't be transmitted electronically, although it's hard to imagine what those could be.
An employer should not deny a request to work from home as a reasonable accommodation only. Because a job involves some contact and coordination with other employees because often meetings can be done effectively by phone or Zoom or teams and information exchanged quickly through email. Like my firm, which is fully remote.
Most things can be done in an office setting on a remote basis. So that's part one of my answer. Part two is that if the employer determines that some job duties must be performed in the workplace, then the employer and employee may wanna talk about, some kind of hybrid situation where the person's working part-time at home and part-time in the workplace, and if that will meet both of their needs.
Like for example, an employee may need to meet with clients as part of a job, but if there are other tasks, just reviewing documents and writing reports, they can do that at home.
[00:21:34] Monique Akanbi: Allen, what should HR teams, do if an accommodation plan has been put in place for an employee, but another employee refuses to follow it?
So I'll give you an example just to follow up, right. So let's say you have an employee who's on, um, ADA lead as a part of their accommodation, and their workload needs to be redistributed to other team members on a temporary basis. and you ask the coworker, to do some of that work, but there's, they're pushing back and saying, that their plate is already full.
What should HR or even people managers do in that scenario?
[00:22:15] Allen Smith: I think this can be a challenging one because there are at least two issues involved that I see, and one of them is the confidentiality requirements of the ADA and being sure that in discussions with this colleague, you're not violating the confidentiality provisions of the ADA.
And then there also, secondly might be performance issues with that colleague. are they fulfilling other duties as assigned, if that's something in their job description. And I guess another consideration is, if this. Person says, well, I can't do this. it's too much. It's gone on too long. whether there are options, can some of that work be shared with other employees?
and. Yes, there's the consideration of is this being a disruption so that it's an undue hardship? But frankly, that only comes up typically at smaller employers because most large employers can absorb the work. So it's a tricky question.
[00:23:30] Monique Akanbi: Amy. if an employee discloses a disability and requests a, an accommodation after receiving a disciplinary feedback, but the employer doubts the legitimacy of their disability, what steps should HR take?
[00:23:46] Amy Gluck: HR should tread carefully as to this issue. for confidentiality reasons as well as, guidance from the EOC. According to the EOC, an employer does not have to rescind discipline. Including a termination or an evaluation warranted by poor performance, just because an employee has disclosed a disability or requested an accommodation after, receiving a written warning or an oral warning, or whatever the case may be.
If the employer doubts the legitimacy of the disability, it should request documentation to support the request for accommodation. If the disability is not visible, having a disability is not a shield against discipline for poor performance, so timing is critical here.
[00:24:43] Monique Akanbi: So let's go into the next phase of the employment lifecycle, which is post-employment.
So Allen, my question is for you, and I believe I saw this on the HR Daily newsletter that I received from Cher, which is the Supreme Court recently dismissed the retired firefighters, ADA bias claim, emphasizing that the limits of ADA protections for individuals no longer actively employed. How can HR ensure compliance with ADA requirements while also addressing potential bias claims from former employees, particularly in cases involving post-employment benefits, or retirement accommodations?
[00:25:27] Allen Smith: Yes. I think that, this is an interesting question because the decision itself was quite. Fragmented. the individual plaintiff, in this case, their, claim involving, retirement health benefits that was blocked, and the majority in the first two parts of the opinion seemed to be indicating.
Maybe all retirees claims would be blocked in such a circumstance. And yet in the third part of it, and if you also take into consideration the dissent, there seemed to be an indication that from a plurality of the court that there might be some circumstances where, someone who. Retired if they can show that they're a qualified individual with a disability, could bring a claim, which almost makes me wonder if it was a matter of pleading.
But, I do think that it does place new limits of some kind, but this may be one of those decisions that's generous to lawyers because I think there's some issues here that might be litigated on down the line.
[00:26:51] Monique Akanbi: All right, Amy, what are your takeaways from this recent decision?
[00:26:56] Amy Gluck: I'm nodding my head because I know, I see this is such a liar's decision.
So cool words, right? From a compliance standpoint, timing matters. it may seem obvious, but if you are completely retired, you're no longer protected by the ADA. You're not in the workforce, you're not seeking to be in the workforce. The ADA doesn't protect people who don't work anymore. Right. but as Allen was alluding to, it seems from the decision that there are ways to plead around this issue.
Like what I can see. Plaintiffs doing is saying that, well, the plan changed while I was employed and I was disabled at that time and I suffered the harm at that time that the plan changed and I was still an employee, so, but even though I'm retired now, I was an employee then. Now that's all well and good, but they would still need to file a timely charge of discrimination.
Right. it would be able to plead, but they may not know about the impact before the statute of limitations runs on their time to file with the EEOC, or the state agency.
[00:28:15] Monique Akanbi: Thank you for, sharing, your takeaways on that. So, Allen, another question directly from our knowledge center, which is, can an employer terminate an employee who can't perform the essential job functions even with accommodations?
[00:28:34] Allen Smith: Well, this is another challenging one, as is so often the case with ADA questions because while in theory the answer is yes, you also have to stop and think, wait, might there be leave? As a reasonable accommodation if this person is unable to perform the essential job functions right now, but on down the line, if leave were granted for a definite period, they.
Could perform the essential job functions and after ADA leave, um, has, taken place or as a last resort accommodation, could this person be reassigned, to a vacant job position?
[00:29:17] Monique Akanbi: So Amy, you mentioned timing matters. so my next question actually, is for you, was an employee, with a disability departs an organization?
Is there anything the employer needs to do to support the individual, as far as continuing benefits or providing certain documentation for their next employer?
[00:29:42] Amy Gluck: Well. It's almost a follow up to Allen's question, which is documentation matters, not just timing, right? Employers must provide information about continuation of benefits under Cobra if the employer has a group plan, and other than that, it really depends on the state.
Some states require written notices upon termination and some don't. But that's all that I'm aware of.
[00:30:10] Monique Akanbi: So as we get ready to wrap up, I have one question for both of you, but Allen, I'm going to kick it to you first. based on the work that you've done, with covering ADA, what's one thing you wish every HR professional understood about it?
[00:30:27] Allen Smith: I do think that most HR professionals are aware of this, but some people still aren't aware of the fact that in most jurisdictions there is such a thing as ADA leave. So when FMLA expires, you have to provide ADA leave for a definite period. The one exception being the seventh Circuit, Illinois, Indiana, and Wisconsin for extended leave.
So just don't forget ADA leave.
[00:30:59] Monique Akanbi: And then. Amy, a little twist to the same question, but because you mentioned earlier that it is very important that HR, train and educate people, managers as well as a part of this process, not to say that they need to know all the ins and outs of ADA, but as a people manager, as a supervisor or a team leader, middle management.
They need to at least have some level of knowledge around ADA and the, whether it's the interactive process or accommodation. So what's one thing you wish HR teams, or HR leaders would do in support of people, managers outside of just education. so that way they understand the importance of ADA.
[00:31:49] Amy Gluck: Education is the most pivotal aspect here. I guess I would say a couple of things. One is that compliance is not being nice to an employee with a disability. It's a legal obligation. Right? I, hear sometimes managers say, we're like the best employer because we provide an accommodation. We're still struggling with this and we don't wanna do the interactive process anymore, but it's a legal obligation.
You're not just being kind and lovely. and the second thing is, really training middle managers and hiring managers as, and HR to understand when somebody is asking. For an accommodation because as Allen Apley said, no magic words are needed. You don't have to say hello. I would like a reasonable accommodation under the ADA, would you start the interactive process with me?
They don't have to say that. Sometimes employees don't even know that they have right? as to their disabilities in the workplace. So really listening to employees when they're asking about needing time and for what reason, I think is pivotal. And understanding the different laws like the ADA, the FMLA and workers' comp, and how they would apply to the different situations.
I would say that. This is one of the most common questions I get is around providing accommodations or around people requesting time off for physical therapy or doctor's appointments and things like that. So it's that knowledge piece.
[00:33:39] Allen Smith: Can I add one thing here? I think it's important too to remember state laws.
You know, I mentioned the seventh circuit, but, while the seventh Circuit held that, you'd need to check Illinois laws and Indiana laws and Wisconsin laws, and local laws, to really cover your bases.
[00:33:59] Amy Gluck: Yeah. Yeah, that's true. And, to Allen's point, in some states have a lower standard for knowledge, right?
It's new or should have known that somebody need an accommodation. So knowledge of state laws is critical.
[00:34:15] Monique Akanbi: Shameless plug. As a member of SHRM, you have access to a multi-state law comparison tool, which is something that I absolutely love because then you can select ADA and the states, if you have employees in multiple states, and it provides that side-by-side comparison.
So thank you for sharing that. That's going to do it for this week's episode of Honest HR. A big thank you to Amy and Allen for sharing their deep insights with us. Honest HR is a part of SHRM's HR Daily flagship content series. you can head over to SHRM dot org slash HR daily. To learn more and sign up for our newsletter.
You can also catch us on SHRM's social media. Be sure to like, comment and be a part of the conversation. Thanks for joining, and until next time, stay well.
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