Date: Feb 01, 2013
Magazine:
February 2012- Uncovering Natural Plant Defenses

The Americans with Disabilities Act (ADA) generally requires employers with 15 or more employees to provide reasonable accommodations to the known physical or mental limitations of an otherwise qualified applicant or employee with a disability — unless the employer can demonstrate that the accommodation would impose an undue hardship.[1]

ADA Overview

A qualified employee with a disability is an individual that satisfies the skill, experience, education, and other job-related requirements of the position sought or held, and can perform the essential functions of the position, with or without reasonable accommodation.

The term disability means: (1) a person who has (or has a record of) a physical or mental impairment that “substantially limits” one or more major life activities and (2) a person who is regarded as having a physical or mental impairment that “substantially limits” one or more major life activities.

The ADA Amendments Act of 2008 (ADAAA) makes it easier for people to establish that they are protected by the ADA.  Under the ADAAA, “disability” is interpreted broadly in favor of expansive coverage and to the maximum extent permitted by the ADA.  Determining if someone has a disability should not require an extensive analysis.  The regulations emphasize that the primary focus should be on whether the employer complied with its accommodation obligations and whether discrimination occurred, not whether an individual is substantially limited in a major life activity.

By the same token, “substantially limits” should also be construed broadly and need not “prevent, or significantly or severely restrict” a person from performing a major life activity.  Each case requires an individualized assessment.

Reasonable Accommodation

A reasonable accommodation is a modification to a job, the work environment, or the usual work process or pattern that allows a qualified individual with a disability to enjoy an equal employment opportunity as anyone else.  The ADA requires reasonable accommodation in three aspects of  employment: 1) to ensure equal opportunity in the application process, 2) to enable a qualified individual with a disability to perform the essential functions of a job, and 3) to enable an employee with a disability to enjoy equal benefits and privileges of employment.

The determination of what is reasonable is determined on a case-by-case basis and depends on the nature of the employee’s disability, the functions of the job, and the resources available to the employer to accommodate the employee.

Examples of reasonable accommodations may include job restructuring; part-time or modified work schedules; reassignment to a vacant position; acquisition or modifications of equipment or devices; and the providing of qualified readers or interpreters.

Interactive Process

Once the employer is aware that the employee may require a reasonable accommodation, it is incumbent on the employer to engage in the interactive process to determine what reasonable accommodation may be required.

The “interactive process” is an informal discussion between the employee in potential need of an accommodation and the employer.  The purpose of the interactive process is to identify the exact disability related limitations that are impairing the employee and to identify potential reasonable accommodations that could overcome those limitations.

If the employer fails to make a good faith effort to determine if reasonable accommodations could be made to allow the employee to perform the job, this could in and of itself be a violation of the ADA.

What Employers Should Do Now

Training of management and supervisors is a key to avoiding potential liability under the ADA.  Managers must be trained on how to recognize an “accommodation” request.  In addition:

•   Managers should be trained to understand that applicants for employment have the same entitlement to reasonable accommodations as employees.

•   Managers should understand what can and cannot be said to an employee requesting an accommodation, including not rejecting an accommodation out of hand, but responding only after the request is fully evaluated.

•   Have a procedure for referring accommodation requests to human resources or other departments responsible for processing such requests.  Whoever is responsible for processing reasonable accommodation requests should be trained as to how to respond to such requests, including the need to engage in the interactive process.

•           Reinforce with your managers your policies ensuring an employee who is provided an accommodation is not mistreated by coworkers due to the accommodation.  Such conduct could result in a retaliation claim against the employer.

 


[1]             For purposes of this article we refer to applicants and employees collectively as “employees.”

 

 

WG Staff Contact

Jason Resnick
Vice President & General Counsel
949-885-2253

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