July 26, 2018
July 26, 2018
The American with Disabilities Act (ADA) applies to all employers with 15 or more employees. This includes private employers, state and local governments, employment agencies and unions. The ADA makes it illegal to discriminate in the job application procedures, hiring, firing, advancement, compensation, job training and any other terms and conditions of employment. Employers also must make reasonable accommodations so that disabled employees can perform the essential duties of their jobs. This requirement makes a strong argument for the significance of job descriptions and the need to make sure they are accurate. Without written documentation about what the essential duties of a job are, the employer can have a more difficult time justifying if they are considering something to not be a reasonable accommodation.
The first thing I want to do is clarify what is considered a disability for the purposes of the ADA. There are three ways that an individual can be considered to have a disability:
- They have a physical or mental impairment that substantially limits one or more major life activities.
- They have a record of such an impairment; or
- They are regarded (perceived) as having such an impairment
Alcohol and drug users are considered disabled under the ADA as long as they are not currently engaging in the illegal use of drugs. If a person can perform a job satisfactorily, a previous record of alcoholism or drug addiction is not a reason enough to refuse to hire them. However, if an applicant is still addicted and it results in poor attendance or poor performance in his or her previous job, you can reject that person not because of the addiction but because of the poor work habits.
During the interview process, employers cannot ask about the existence, nature or severity of a disability. However, they can ask about the applicant’s ability to perform specific job functions. Job offers can be conditional on the results of a medical exam, if a medical exam is required for all new hires in similar roles, they have a job-related purpose, and are consistent with the businesses needs. Any medical information an employer learns is confidential even if it doesn’t contain a medical diagnosis or treatment course and even if it isn’t generated by a healthcare provider.
Employers must make a reasonable accommodation if it does not impose an undue hardship on the employers business. The definition of undue hardship is an action that would require significant difficulty or expense to the business. Multiple factors should be looked at to determine this: the size of the business, financial resources and nature/structure of the business. Reasonable accommodations can include but are in no way limited to:
- Making existing facilities used by employees readily accessible to and usable by a person with a disability
- Job restructuring, modifying work schedules, or reassignment to a vacant position.
- Purchasing or modifying equipment or devices.
In recent guidance and decisions, leave of absences has been considered a reasonable accommodation depending on the circumstances. The courts have consistently held that an indefinite leave is not a reasonable accommodation and posses an undue hardship. When it comes to determining if a leave of absence is a reasonable accommodation the employer needs to do the individualized evaluation of each request even if the employer has a max leave policy.
Generally, an employer does not have to provide a reasonable accommodation unless the individual with the disability has asked for one. However, if an employer thinks that a medical condition is causing a performance or conduct problem they can ask the employee how to solve the problem and if the employee needs a reasonable accommodation. Once a reasonable accommodation is requested the employer has to meet with the employee to discuss the options for a reasonable accommodation. If necessary this where the medical documentation can be requested to validate the need for accommodation. If there is more than one accommodation that could work the employer can choose the less costly or easier option if they want. If there is not a reasonable accommodation that can be reached then the employer needs to document the reason and provide that to the employee.
Some great resources for further research are below:
If when you look at this you think you need some help Leadership Arts Associates can partner with you to make the task less daunting. You can reach me at firstname.lastname@example.org or 717-430-2850.