ADA - Horton Management Law

Most employers know that employees with disabilities may be eligible for “reasonable accommodations”. Fewer know where these obligations come from or exactly what they mean.

Job applicants also have rights regarding reasonable accommodations. This includes accommodations to the hiring process as well as the position sought.

Applicable Laws

The Americans with Disabilities Act of 1990 (ADA) is a federal law that prohibits discrimination in employment (among other areas) against a qualified individual with a disability. (For more on what qualifies as a disability, read What Is a Disability Under the ADA?) The ADA covers employers with at least 15 employees in the United States.

An earlier law, the Rehabilitation Act of 1973 prohibits employers with government contracts (with contracts of more than $10,000) from discriminating against a qualified individual with a handicap. It also protects employees of the federal government from disability discrimination and gives them, like employees of federal contracts, rights to reasonable accommodations.

Finally, many states have laws prohibiting disability discrimination that also require employers to provide reasonable accommodations.

Defining Reasonable Accommodation

Under the ADA, the U.S. Equal Employment Opportunity Commission has issued regulations defining reasonable accommodation to mean modifications or adjustments:

to a job application process that enable a qualified applicant with a disability to be considered for the position the applicant desires;
to the work environment, or to the manner or circumstances under which the position held or desired is customarily performed, that enable an individual with a disability who is qualified to perform the essential functions of that position; or
that enable an employee with a disability to enjoy equal benefits and privileges of employment as are enjoyed by the employer’s other similarly situated employees without disabilities.

The regulations further explain that accommodations may include:

making existing facilities used by employees readily accessible to and usable by individuals with disabilities;
job restructuring;
part-time or modified work schedules;
reassignment to a vacant position;
acquisition or modifications of equipment or devices;
appropriate adjustment or modifications of examinations, training materials, or policies;
the provision of qualified readers or interpreters; and
other similar accommodations for individuals with disabilities.

According to the U.S. Supreme Court, a modification or adjustment is “reasonable” if it “seems reasonable on its face”. This means the accommodation appears to be “feasible” or “plausible”. It must be also effective in meeting the needs of the employee.

Undue Hardship

Even if an accommodation is “reasonable,” an employer does not have to provide it if it imposes an undue hardship on the business. Whether an accommodation would create an undue hardship must be determined case-by-case.

“Undue hardship” means a significant difficulty or expense in consideration of the:

nature and net cost of the accommodation needed, taking into consideration the availability of tax credits and deductions, and/or outside funding;
overall financial resources of the facility or facilities involved, the number of persons employed at the facility, and the effect on expenses and resources;
overall financial resources of the employer, the overall size of the business of the employer with respect to the number of its employees, and the number, type, and location of its facilities;
type of operation or operations of the employer, including the composition, structure, and functions of the workforce and the geographic separateness and administrative or fiscal relationship of the facility or facilities in question to the employer; and
impact of the accommodation upon the operation of the facility, including the impact on the ability of other employees to perform their duties and the impact on the facility’s ability to conduct business.

Similar factors and analysis of reasonable accommodations and undue hardship apply under the Rehabilitation Act and most state disability discrimination laws.

Evaluating Accommodations

In seeking an accommodation, the applicant or employee with a disability must let the employer know that they need an adjustment or change at work for a reason related to a medical condition. The person may use “plain English” and need not specifically mention any legal entitlement or use the phrase “reasonable accommodation.”

Employees do not have a right to every accommodation they seek. Even if the employee’s proposed accommodation is reasonable and does not impose an undue hardship, the employer may choose an alternative accommodation that meets the employee’s needs.

When the availability or reasonableness of accommodations is in question, employers must engage in an “interactive process” with the employee. The EEOC suggests that the employer should give primary consideration to the employee’s requested accommodation. However, the employer may provide the least expensive effective accommodation or the one that is the easiest to provide.

Limits on Reasonable Accommodations

It’s often difficult to determine how far to go in accommodating an employee. But employers can bear these limits in mind.

Performance standards regarding quality or quantity need not be lowered as a reasonable accommodation.
Jobs don’t have to be restructured in a way that eliminates essential functions.

Preparing to Accommodate Disabilities

Employers should have policies and procedures in place for receiving and processing disability accommodation requests. Managers and supervisors must understand when an employee has made a request for accommodation. Otherwise, they might unlawfully ignore a sufficient request. That can result in improper discipline or other undue adverse impact to the employee.

When management receives an accommodation request, it must not jump too quickly to conclusions about the feasibility of the request. Even expensive accommodations could be reasonable, and grants or other financial support may be available to defray the costs.

The United States Department of Labor’s Office of Disability Employment Policy provides relevant services through the Job Accommodation Network (JAN). JAN provides information regarding available workplace accommodations to individuals and employers of all sizes.

Once accommodation options are on the table, an experienced employment attorney can help management evaluate the risks of declining to accommodate.

Since 1990, the Americans with Disabilities Act (ADA), has prohibited discrimination based on disability. This includes employment discrimination.

The ADA was amended in 2008 by the cleverly named Americans with Disabilities Act Amendments Act (yes, the ADAAA).

The ADA prohibits discrimination against qualified individuals with a disability. It also requires employers to provide reasonable accommodations to employees with disabilities. Reasonable accommodations can range from time off from work to making structural changes to the workplace.

So, which employees does the ADA protect?

An individual with a disability is a person who:

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.

Let’s break these down.

1. Has a physical or mental impairment that substantially limits one or more major life activities.

Physical or mental impairment:

(i) Any physiological disorder or condition, cosmetic disfigurement, or anatomical loss affecting one or more body systems, such as neurological, musculoskeletal, special sense organs, respiratory (including speech organs), cardiovascular, reproductive, digestive, genitourinary, immune, circulatory, hemic, lymphatic, skin, and endocrine; or

(ii) Any mental or psychological disorder, such as an intellectual disability, organic brain syndrome, emotional or mental illness, and specific learning disabilities.

Substantially limits:

This one is very complicated and discussed at length in applicable regulations from the EEOC. Generally speaking: An impairment is a disability if it substantially limits the ability of an individual to perform a major life activity as compared to most people in the general population. An impairment need not prevent, or significantly or severely restrict, the individual from performing a major life activity in order to be considered substantially limiting. Nonetheless, not every impairment will constitute a disability.

Most notably, the regulations provide that:

The term “substantially limits” shall be construed broadly in favor of expansive coverage, to the maximum extent permitted by the terms of the ADA. “Substantially limits” is not meant to be a demanding standard.

Major life activities:

Major life activities include, but are not limited to:

(i) Caring for oneself, performing manual tasks, seeing, hearing, eating, sleeping, walking, standing, sitting, reaching, lifting, bending, speaking, breathing, learning, reading, concentrating, thinking, communicating, interacting with others, and working; and

(ii) The operation of a major bodily function, including functions of the immune system, special sense organs and skin; normal cell growth; and digestive, genitourinary, bowel, bladder, neurological, brain, respiratory, circulatory, cardiovascular, endocrine, hemic, lymphatic, musculoskeletal, and reproductive functions. The operation of a major bodily function includes the operation of an individual organ within a body system.

Here again, the EEOC’s regulations note that:

The term “major” shall not be interpreted strictly to create a demanding standard for disability. Whether an activity is a “major life activity” is not determined by reference to whether it is of “central importance to daily life.”

2. Has a record of such an impairment.

An individual has a record of a disability if the individual has a history of, or has been misclassified as having, a mental or physical impairment that substantially limits one or more major life activities.

3. Is regarded as having such an impairment.

An individual is “regarded as having such an impairment” if the individual is subjected to a prohibited action because of an actual or perceived physical or mental impairment, whether or not that impairment substantially limits, or is perceived to substantially limit, a major life activity.

Prohibited actions include but are not limited to refusal to hire, demotion, placement on involuntary leave, termination, exclusion for failure to meet a qualification standard, harassment, or denial of any other term, condition, or privilege of employment.

The Scope of Disability Is Broad Under the ADAAA

The 2008 amendments did not change the definition of disability itself. However, they did expand the scope of the components of the definition. As a result, the ADA now protects many more employees than it originally did.

State and laws, such as the New York State and New York City Human Rights Laws, may also afford protections to employees with disabilities.

Accordingly, employers must proceed with caution in managing employees with known or perceived disabilities.

Check out my post on 27 Situations Where Your Business Needs an Employment Lawyer.

Tag: ADA

Reasonable Accommodations of Disability in Employment