The Americans with Disabilities Act and Reasonable Accommodations
The Americans with Disabilities Act (the “ADA”) was enacted into law by Congress in 1990. Title I of the ADA prevents employers from discriminating against a person with a disability, on the basis of that disability, with respect to job application procedures, hiring, advancement, discharge, compensation and other terms or conditions of employment. In 2008, after a series of U.S. Supreme Court decisions narrowed the definition of a “disability” so as to significantly limit the scope of the ADA, Congress passed the ADA Amendments Act. The purpose of the ADAAA was to broaden the definition of “disability” and thus provide coverage to a wider group of individuals.
The term “disability” means, with respect to an individual, a physical or mental impairment that substantially limits one or more of the “major life activities” of such individual. “Major life activities” include, but are not limited to, caring for oneself, performing manual tasks, seeing, hearing, eating, sleeping, walking, standing, lifting, bending, speaking, breathing, learning, reading, concentrating, thinking, communicating and working.
The ADA requires an employer with 15 or more employees to provide “reasonable accommodation” for individuals with disabilities. A “reasonable accommodation” is any change in the work environment, or in the way things are customarily done, that enables an individual with a disability to enjoy equal employment opportunities. A reasonable accommodation need not be provided if it would impose an “undue hardship” on the operation of the business of the employer. However, an employer may not refuse to provide an accommodation just because it involves some cost. Examples of reasonable accommodations include the following:
› making existing facilities accessible;
› part-time or modified work schedules;
› reassignment to a vacant position
› acquiring or modifying equipment; and
› changing tests, training materials, or policies.
Generally, the employee has the legal duty to initiate a request for a disability accommodation, unless the employer is aware of the disability. The employer’s knowledge of the disability can be inferred if the disability is obvious. The employer is not required to provide the best accommodation available; or the specific accommodation that the employee wants. An accommodation is effective if it provides the disabled individual with the ability to participate equally in the employment application process, attain the same level of performance as co-workers, and enjoy all benefits and privileges of employment available to all employees.
An employer does not have to eliminate an “essential function” of the position in order to accommodate an individual with a disability, because a person with a disability who is unable to perform the essential function with reasonable accommodation is not a qualified individual within the meaning of the ADA. Essential functions are the fundamental job duties that an individual must be able to perform, with or without an accommodation. The employee must also satisfy the employer’s job requirements for educational background, employment experience, skills, licenses, and any other qualification standards that are job related.
Accordingly, a careful employer should assume that if an employee suffers from any sort of obvious functional limitation at work, it is covered by the ADAAA, and a reasonable accommodation should be offered. Below are recommended practices for all employers:
1. Enable all individuals to participate equally in the job application process.
An employer must provide a reasonable accommodation to a qualified applicant with a disability that will enable the individual to participate equally in the application process and to be considered for a job, unless the employer can show undue hardship. However, an employer may not ask the applicant if they will need a reasonable accommodation for the job should the applicant be hired until after a conditional offer of employment is made.
2. Be responsive to employee requests for reasonable accommodations.
The request is the first step in an informal, interactive process between the employee and the employer. Once a request is made, the employer should expeditiously determine if the employee has a disability. The employer can ask for reasonable documentation to prove the disability unless it is obvious.
3. Be aware of potential employee disabilities.
If a disability is obvious, and the employee does not ask for a reasonable accommodation, the employer should initiate a discussion with the employee regarding the need for a reasonable accommodation. If the employee declines, the employer has fulfilled its duty.
4. Carefully select reasonable accommodations.
The employer should carefully select the accommodation(s) to be provided to an employee with a disability, keeping in mind that the accommodation(s) must allow the employee to (a) obtain equal access to information communicated to employees in the workplace and (b) to participate in employer-sponsored programs and benefits in the workplace. The accommodations do not have to be the best accommodations or the accommodations that the employee wants, and do not have to be provided if they will cause the employer to suffer an undue hardship.
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