Question

An employee recently requested a reasonable accommodation based on her disability. This is the first time we have received such a request. I’m somewhat familiar with the Americans with Disabilities Act but not sure what we have to do as a company to address her request. Can you provide some guidance? Is there any justification for not making the accommodation?

Answer

The Americans with Disabilities Act is one of the more complex and challenging laws with which employers must deal. The ADA became law on July 26, 1990. It applies to employers with 15 or more employees. The law makes it illegal to discriminate in employment against a qualified individual with a disability.

The ADA is enforced by U.S. Equal Employment Opportunity Commission and the Massachusetts Commission against Discrimination (MCAD). The EEOC is focused on enabling all qualified employees (disabled or not) to work if possible. That is clear from Congress’ action in 2008 when it explicitly overrode several Supreme Court decisions that had made it harder for some disabled workers to qualify for legal protections under the ADA.

The scope of the ADA makes it unlawful to discriminate in employment practices such as recruitment, pay, hiring, firing, promotion, job assignments, training, leave, lay-offs and benefits.

The ADA also prohibits an employer from retaliating against an individual for asserting her or his rights under the ADA. And the Act makes it unlawful to discriminate against an applicant or employee, whether disabled or not, because of the individual’s family, business, social or other relationship or association with an individual with a disability.

Compliance with the ADA should not interfere with an employer’s right to hire or promote the best-qualified individual. Nor does it impose any affirmative-action obligations. Rather, the law prohibits employers from discriminating against a qualified applicant or employee because of the person’s disability.

Disability

Under the ADA, a person has a disability if he or she has a physical or mental impairment that substantially limits a major life activity. The ADA also protects individuals who have a record of a substantially limiting impairment, and people who are regarded as having a substantially limiting impairment.

A substantial impairment is one that significantly limits or restricts a major life activity such as caring for oneself, performing manual tasks, seeing, hearing, eating, sleeping, walking, standing, lifting, bending, speaking, breathing, learning, reading, concentrating, thinking, communicating, and working.

A major life activity also includes major bodily functions including the immune system, normal cell growth, digestive, bowel, bladder, neurological, brain, respiratory, circulatory, endocrine, and reproductive functions.

Qualified Individual

An individual with a disability must be qualified to perform the essential functions of the job with or without reasonable accommodation. This means that the applicant or employee must:

• satisfy the job requirements for educational background, employment experience, skills, licenses, and any other qualification standards that are job related; and
• be able to perform those tasks that are essential to the job, with or without reasonable accommodation.

Essential Functions

Essential functions are the basic job duties that an employee must be able to perform, with or without reasonable accommodation.

Factors to consider in determining whether a function is essential include:

• whether the position exists to perform that function,
• whether the position would be significantly changed if the function was removed,
• the number of other employees available to perform the function or among whom the performance of the function can be distributed, and
• the degree of expertise or skill required to perform the function.

The employer’s judgment as to which functions are essential, and a written job description prepared before advertising or interviewing for a job will be considered by the EEOC or MCAD as evidence of essential functions. Other evidence includes:

• the actual work experience of present or past employees in the job,
• the time spent performing a function,
• the consequences of not requiring that an employee perform a function, and
• the terms of a collective bargaining agreement.

Reasonable Accommodation

Reasonable accommodation means any change or adjustment to a job or work environment that enables a qualified disabled applicant or employee to participate in the job application process, to perform the essential functions of a job, or to enjoy benefits and privileges of employment the same as employees without disabilities. Examples include:

• acquiring or modifying equipment or devices,
• job restructuring,
• part-time or modified work schedules,
• reassignment to a vacant position,
• adjusting or modifying examinations, training materials or policies,
• providing readers and interpreters, and
• making the workplace readily accessible to and usable by people with disabilities.

Identifying a Reasonable Accommodation

The individual may suggest a reasonable accommodation based upon his or her own life or work experience or if an appropriate accommodation is not readily apparent, an employer must make a reasonable effort to identify one. Options include:

• Engage in an interactive dialogue with the individual about potential accommodations. (Be sure to document this process, as this discussion is required by the ADA.)
• Review the EEOC website for suggestions.
• Contact the Job Accommodation Network (JAN) website.

Keep in mind that it is a violation of the ADA to fail to provide a reasonable accommodation to the known physical or mental limitations of a qualified individual with a disability, unless to do so would impose an undue hardship on the operation of the business.

Undue Hardship

Undue hardship means that an accommodation would be unduly costly, extensive, substantial, or disruptive, or would fundamentally alter the nature or operation of the business. Among the factors to be considered in determining whether an accommodation is an undue hardship are the cost of the accommodation, the employer’s size, financial resources and the nature and structure of its operation.

If an employer believes an accommodation would be an undue hardship, an employer must try to identify another accommodation that will not pose such a hardship. If cost is the problem, an employer must consider whether funding for an accommodation is available from an outside source, such as a vocational rehabilitation agency, and if the cost of providing the accommodation can be offset by state or federal tax credits or deductions. Finally, an employer must also give the individual the opportunity to provide the accommodation or pay for the portion of the accommodation that constitutes an undue hardship.

The ADA and Medical Examinations

It is unlawful to:

• ask an applicant whether she/he is disabled or about the nature or severity of a disability, or
• to require the applicant to take a medical examination before making a job offer.

An employer may ask an applicant questions about her or his ability to perform job-related functions, as long as the questions are not phrased in terms of a disability. You may also ask an applicant to describe or to demonstrate how, with or without reasonable accommodation, the applicant will perform job-related functions.

After a job offer is made and prior to the commencement of employment duties, an employer may require an applicant take a medical examination if everyone who will be working in the job category must also take the examination. The job offer may be conditioned upon the results of the medical examination.

However, if an individual is not hired because a medical examination reveals the existence of a disability, an employer must be able to show that the reasons for exclusion are job related and necessary for conduct of the business and that there was no reasonable accommodation that would have made it possible for the individual to perform the essential job functions.

Once hired, the employee may not be required to take another medical examination unless the employer can show that these requirements are job related and necessary for the conduct of the business. The results of all medical examinations or information from inquiries about a disability must be kept confidential and maintained in separate medical files.

Below are some helpful resources for employers regarding the ADA.

ADA National Network

800-949-4232

www.adata.org

The Job Accommodation Network (JAN)

800-526-7234

www.askjan.org(link is external)

Equal Employment Opportunity Commission (EEOC) ADA Information Line

800-669-4000 (Voice)

www.eeoc.gov(link is external)

U.S. Department of Labor Office of Disability Employment Policy

1-866-ODEP-DOL (633-7365) | 202-693-7880

https://www.dol.gov/agencies/odep

AIM members with questions about this or any other human resources issue may contact the AIM Employer Hotline at 1-800-470-6277.