Tag: Accomodation

• Four Misunderstood Terms in the Americans with Disabilities Act

  November 8, 2021

  Tags: Accomodation, Americans with Disabilities Act, disability

  

  The Amer­i­cans with Dis­abil­i­ties Act (ADA) applies to employ­ers with 15 or more employ­ees. Despite its broad cov­er­age, there’s a lot of con­fu­sion about what the law requires and what its terms entail. A big rea­son for this con­fu­sion is the lan­guage of the law itself; the ADA speaks of neb­u­lous con­cepts like undue hard­ship and rea­son­able accom­mo­da­tion. Words like undue and rea­son­able are by their nature open to some inter­pre­ta­tion, which is not exact­ly a com­fort to employers.

  For­tu­nate­ly, employ­ers can feel con­fi­dent in their appli­ca­tion of the law by review­ing and under­stand­ing its most impor­tant con­cepts. In this arti­cle, we’re going to define and ana­lyze the terms dis­abil­i­ty, undue hard­ship, rea­son­able accom­mo­da­tion, and inter­ac­tive process. These are the big four terms that serve as the foun­da­tion of your respon­si­bil­i­ties as an employ­er under the ADA.

  Disability

  Let’s start with the term dis­abil­i­ty. Under the ADA, a per­son with a dis­abil­i­ty is some­one 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.

  Major life activ­i­ties include 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 the oper­a­tion of a major bod­i­ly func­tion, such as diges­tive, cir­cu­la­to­ry, and repro­duc­tive functions.

  Although deter­min­ing whether an impair­ment meets the def­i­n­i­tion of dis­abil­i­ty is an indi­vid­u­al­ized assess­ment, some con­di­tions “vir­tu­al­ly always qual­i­fy.” For exam­ple, accord­ing to the EEOC, deaf­ness sub­stan­tial­ly lim­its hear­ing; HIV sub­stan­tial­ly lim­its immune func­tion; and bipo­lar dis­or­der sub­stan­tial­ly lim­its brain func­tion. Oth­er con­di­tions may vary from case to case in whether they sub­stan­tial­ly lim­it a major life activity.

  It’s impor­tant to note that the def­i­n­i­tion of dis­abil­i­ty is broad. After the ADA was orig­i­nal­ly passed, the courts inter­pret­ed the def­i­n­i­tion very nar­row­ly, and Con­gress respond­ed by amend­ing the ADA in 2008 so that more dis­abil­i­ties are cov­ered. If an employ­ee asks for an accom­mo­da­tion because of a phys­i­cal or men­tal con­di­tion, it often won’t be hard for them to show that the con­di­tion sub­stan­tial­ly lim­its a major life activity.

  Reasonable Accommodation

  Employ­ers often encounter the ADA when an appli­cant or employ­ee asks for a rea­son­able accom­mo­da­tion. A rea­son­able accom­mo­da­tion is a change to the work­place or the job appli­ca­tion process so that peo­ple with dis­abil­i­ties can per­form the essen­tial func­tions of their job, access employ­ment ben­e­fits, or be con­sid­ered for a job they’re qual­i­fied for. The intent of rea­son­able accom­mo­da­tions is to remove work­place bar­ri­ers for peo­ple with disabilities—barriers that don’t pre­vent peo­ple with­out dis­abil­i­ties from per­form­ing the work or apply­ing for the job. But don’t focus too much on the word rea­son­able; in the con­text of dis­abil­i­ty accom­mo­da­tions, rea­son­able means fea­si­ble or plausible.

  Com­mon types of accom­mo­da­tions include mod­i­fy­ing work sched­ules, alter­ing the way job duties are done, re-assign­ing a non-essen­tial job duty (like ask­ing the recep­tion­ist to stack the month­ly 100-lb paper deliv­ery in the stor­age room), grant­i­ng addi­tion­al breaks, pro­vid­ing acces­si­ble park­ing, and pro­vid­ing mate­ri­als in alter­na­tive for­mats (e.g., Braille, large print). Anoth­er type of accom­mo­da­tion is a tem­po­rary leave of absence. Although a bit coun­ter­in­tu­itive (because the employ­ee isn’t work­ing while on leave), the the­o­ry with a leave as an accom­mo­da­tion is that the time off will enable to employ­ee to per­form the essen­tial func­tions of their job when they return.

  Not every request­ed accom­mo­da­tion is required, how­ev­er. For one, employ­ers don’t have to remove an essen­tial job func­tion (e.g., the recep­tion­ist can still be expect­ed to answer the phone). Employ­ers also aren’t required to pro­vide items for per­son­al use, like wheel­chairs or hear­ing aids. And, as we turn to next, an accom­mo­da­tion doesn’t have to be pro­vid­ed if it caus­es an undue hardship.

  Undue Hardship

  Under the ADA, an employ­er is not required to pro­vide rea­son­able accom­mo­da­tions to employ­ees or appli­cants with dis­abil­i­ties if doing so cre­ates an undue hard­ship on the orga­ni­za­tion. The basic def­i­n­i­tion of undue hard­ship is an action that cre­ates a sig­nif­i­cant dif­fi­cul­ty or expense. Gen­er­al­ly, this is a high stan­dard to meet.

  The cost of an accom­mo­da­tion could be an undue hard­ship on the employ­er, but so could an accommodation’s dura­tion or dis­rup­tion. An accom­mo­da­tion that would fun­da­men­tal­ly alter the nature or oper­a­tion of the busi­ness would be an undue hard­ship even if the cost was neg­li­gi­ble. But if cost alone is the basis for claim­ing undue hard­ship, employ­ers should remem­ber that the stan­dard is a sig­nif­i­cant expense.

  Undue hard­ship is deter­mined on a case-by-case basis, con­sid­er­ing the fol­low­ing factors:

  • The nature and net cost of the accom­mo­da­tion, includ­ing the avail­abil­i­ty of tax cred­its and deduc­tions, as well as out­side funding;
  • The over­all finan­cial resources of the facil­i­ty pro­vid­ing the accom­mo­da­tion, the num­ber of employ­ees at the facil­i­ty, and the effect of the accom­mo­da­tion on expens­es and resources;
  • The employer’s over­all finan­cial resources, size, num­ber of employ­ees, and the num­ber, type, and loca­tion of its facilities;
  • The type of oper­a­tion of the employ­er, includ­ing the com­po­si­tion, struc­ture, and func­tions of the work­force, and the geo­graph­ic sep­a­rate­ness and admin­is­tra­tive or fis­cal rela­tion­ship of the facil­i­ty pro­vid­ing the accom­mo­da­tion; and
  • The impact of the accom­mo­da­tion on 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.

  An employ­er can’t claim undue hard­ship based on employ­ee or cus­tomer fears or prej­u­dices toward the dis­abil­i­ty. An undue hard­ship also can’t be based on the pos­si­bil­i­ty that an accom­mo­da­tion could reduce employ­ee morale.

  Interactive Process

  The inter­ac­tive process is an ongo­ing con­ver­sa­tion between the employ­er and employ­ee to explore poten­tial accom­mo­da­tions so that the employ­ee can per­form their essen­tial job func­tions or access the ben­e­fits or priv­i­leges of their job.

  Basi­cal­ly, the inter­ac­tive process starts with brain­storm­ing. The employee—and in some cas­es their med­ical provider—is often the best source for accom­mo­da­tion options. How­ev­er, the employ­er should do some research too, for exam­ple, by search­ing for the dis­abil­i­ty or func­tion­al lim­i­ta­tion on the Job Accom­mo­da­tion Net­work web­site.

  Next, the employ­er choos­es an accom­mo­da­tion from all the options. Employ­ers should give con­sid­er­a­tion to which accom­mo­da­tion the employ­ee prefers, but, at bot­tom, what­ev­er accom­mo­da­tion they choose must be effec­tive. If it’s not clear ini­tial­ly, the employ­er can imple­ment an accom­mo­da­tion for a tri­al peri­od to deter­mine whether it’s effec­tive. If that accom­mo­da­tion doesn’t work, employ­ers should then try a dif­fer­ent accom­mo­da­tion. In addi­tion, cir­cum­stances may change over time, so the best prac­tice is to keep an open dia­logue with the employ­ee to see if fur­ther adjust­ments are need­ed through­out the employ­ment relationship.

  By Megan LeMire

  Orig­i­nal­ly post­ed on Min­er­al