Complying With The Americans With Disabilities Act (ADA)
By Aaron Larson
- Notice of Disability
- Undue Hardship
- Pre-Employment Inquiries
- Anticipating Litigation
Under the Americans With Disabilities Act (ADA), employers covered by the Act are ordinarily required to provide "reasonable accommodation" to otherwise qualified disabled workers, such that they are able to perform the essential functions of their jobs. An employing office is only required to accommodate a "known" physical or mental limitation of an otherwise qualified applicant or employee.
An employee is considered to have a "disability" if the employee has a physical or mental impairment that substantially limits one or more major life activities, has a record of such an impairment, or is regarded as having such an impairment. Where the Act applies, a disabled worker cannot be fired for performance issues related to the disability before the employer attempts accommodation, either by facilitating the employee's performance of the essential functions of the job, or by offering the employee the opportunity to assume a vacant position the employee might be able to perform.
Employers with fewer than 15 employees are not covered by the Act.
Employers are not required to provide accommodation where doing so would impose an undue hardship on the business.
An employer is only required to accommodate disabilities it know about, and cannot be held liable under the ADA where it is unaware of any need for accommodation. Ordinarily the disabled employee must inform the employer of the disability, and the employee is often well-positioned to suggest what would constitute appropriate accommodation. If an employee with a disability requests an appropriate accommodation, but is unable to suggest one, the employer should wokr with the employee to identify a possible accommodation.
An employer is usually best served by assuming that any given illness, injury or disability will be considered a disability under the ADA, rather than risking liability for refusing to accommodate a legitimate disability. However, in granting accommodation the employer need not acknowledge that its actions are necessitated by the ADA, or that it considers the disability to qualify under the ADA. Upon being informed of an illness, injury or disability by an employee, an employer need not make an offer of accommodation unless it is apparent that the employee has a qualifying disability and is requesting accommodation.
There are many possible means by which an employer may accommodate a disabled employee. Examples of accommodation include:
Providing a restructured job environment, for example shifting certain job responsibilities to other employees, or altering how or when a task is performed. An employer may require a disabled employee to perform a different minor job duty in exchange for one shifted to another employee as a result of the disability.
Providing unpaid leave. An employer need not provide unpaid leave if it can accommodate the worker's disability without providing leave.
Providing a modified or part-time schedule.
Providing a modified workplace policy or procedure, for example an attendance policy. The modification need not be extended to other employees.
Assigning the disabled employee to a vacant position for which the employee is qualified, with or without reasonable accommodation. The vacant position should be equal in pay and status to that presently held by the disabled worker.
An employer should respond promptly to any request for reasonable accommodation. Where more than one accommodation might resolve the employee's difficulty, while the employer may consider the employee's preference, the employer may choose the accommodation which will be extended to the employee.
An employer need not do the following:
Change the disabled employee's supervisor.
Eliminate a primary job responsibility of the disabled employee. Note, however, that the employer may be required to accommodate the employee such that the employee can fulfull his or her primary job responsibilities.
Provide personal use items, such as an artificial llimb, wheelchair, eyeglasses, a hearing aid, or similar devices.
Excuse a violation of a uniformly applied conduct rule that is job-related and consistent with business necessity. For example, an employer need not excuse theft, acts or threats of violence against other employees, bringing weapons into the workplace, or destruction of property.
Provide an accommodation, including a schedule modification or provision of unpaid leave, which would be unduly disruptive of other employees' ability to perform their jobs.
Lower production standards that are applied to all employees. However, the employer may be required to provide an accommodation to help the employee meet the production standards.
Accommodate the use of illegal drugs.
An employer may not tell other employees that a fellow employee is receiving accommodation under the ADA, and may not disclose medical information about the disabled employee. If other employees ask about an accommodation, the employer may point out that personnel issues are confidential, and may refer them to its general workplace policies.
Each request for reasonable accommodation is separately evaluated to see if it would impose an undue hardship on the employer, based upon the following factors:
The nature and cost of the accommodation needed;
The overall financial resources of the business, the number of persons employed by the business, and the effect on expenses and resources of the business; and
The impact of the accommodation on the business.
Undue hardship includes not only cost, but also whether an accommodation would be unduly extensive or disruptive, or would fundamentally alter the nature or operation of the business. If an employer wishes to claim cost as a hardship, the employer should first determine whether funding for the accommodation is available from an outside source (such as a state rehabilitation agency), or whether tax credits or deductions will offset part or all of the cost of accommodation. To the extent that a portion of the cost of an accommodation causes undue hardship, the employer should give the disabled employee the opportunity to pay the difference.
Prior to making an offer of employment, employers may ask applicants about their ability to perform job-related funcitons. However, employers may not ask job applicants about the existence, nature, or severity of a disability. Similarly, they may not ask whether the applicant has suffered an on-the-job injury or applied for workers' compensation.
An offer of employment may be conditioned upon the results of a medical examination, to be conducted after the offer of employment is made, but only if such an examination is required for all new employees regardless of disability. All information obtained through such a medical examination must be maintained and protected separately from other employee information, as confidential employee medical records.
Where an employer raises the defense that it was not notified of a disability, employees have been known to falsely claim that they notified their supervisors of a disability and need for accommodation. Thus, employers will generally benefit from establishing and maintaining good procedures and record-keeping policies for reports of disabilities and requests for accommodation. Good procedures can help protect an employer who never receives notice of a disability, but is sued with the claim that it failed to offer reasonable accommodation.
Copyright © 2003-2011 Aaron Larson. All rights reserved. No portion of this article may be reproduced without the express written permission of the copyright holder. If you believe you may lawfully use a quotation, excerpt or paraphrase of this article under the Fair Use exception to copyright law, except as otherwise authorized by the author of the article, you must cite this article as a source for your work and include a link back to the original article from any online materials that incorporate or are derived from the content of this article.