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Seventeen years after the passage of the Americans With Disabilities Act (ADA), a lot of confusion still exists about the application of the law, particularly when it comes to the requirement to provide "reasonable accommodations."
In fiscal year 2006 alone, the Equal Employment Opportunity Commission (EEOC) received 15,575 disability discrimination charges, up from 14,893 the previous year.
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How the Law Defines Disability |
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Under the ADA, job discrimination based on disability is illegal. Employers with 15 or more employees, state and local governments, labor unions and employment agencies are subject to the law.
The ADA defines a disabled person as one who:
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Has a physical or mental impairment that substantially limits one or more major life activities;
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Has a record of such an impairment; or
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Is regarded as having such an impairment. |
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EEOC Resources
A Primer for Small Business
Work at Home as an Accommodation
A Guide for Restaurant and Food Service Employees |
With statistics like that, it's a good idea to brush up on what the ADA requires of your company and its employees.
The basic concept seems simple: If a person with a disability can perform the essential functions of the job with a "reasonable accommodation" from the employer, the individual is deemed qualified for that job. An employee who needs an accommodation must ask the employer for it. After that, it is the employer's responsibility to make the accommodation, provided it will not cause an "undue hardship" on the operation of the business.
Not surprisingly, the difficulty often lies in the definition of what is a "reasonable accommodation."
Extra Time to Maneuver
One recent federal appeals court case underscores the legal responsibilities of both employers and employees.
Facts of the case: Ahmet Demirelli was confined to a wheelchair and worked for a company that provides telephone customer service to corporations. To keep its call centers consistently staffed, the company maintained a strict tardy policy.
Certain conditions made it hard for Demirelli to maneuver to his desk on time in the morning and after lunch. There were only two handicapped spaces in the parking lot and the layout of the building consisted of "a maze of hundreds of cubicles," and narrow aisles, according to the court. Call representatives were not assigned to cubicles but had to find available workstations each time they arrived.
The Appeals Court noted that Demirelli made several efforts to arrive on time. For example, he tried driving to work earlier but the two handicapped parking spots were still usually taken. He tried parking at a nearby lot and requested different work hours.
Demirelli's supervisor refused to reserve a workstation for him near the entrance. When approached to discuss his tardiness, Demirelli explained he was having problems finding parking and a workstation. He asked for "a grace period" of a few extra minutes to return from lunch. The employer denied the request and terminated him for habitual lateness.
Once in court, the employer argued that it was not "liable for failure to accommodate Demirelli because he did not request a specific, reasonable accommodation" and his proposals were unreasonable.
The appeals court disagreed, however, noting that case law has established a shared responsibility between employers and employees to resolve accommodation requests. A disabled employee must initiate the process by making an employer aware of the need, providing relevant details of the disability and, if not obvious, explaining why an accommodation is required.
"Once the employer is made aware of the legitimate need for an accommodation," the court explained, "the employer must make a reasonable effort to determine the appropriate accommodation."
In this case, the ruling upheld a $100,000 jury award against the employer. The court noted that the company did not fulfill its "obligation to explore possible accommodations" and the employee actually "exceeded what disabled employees at the initial stage of the interactive process must do" by making suggestions. (EEOC v. Convergys Customer Management Group, Inc., No 06-2874, U.S. Ct. of Appeals, 8th Circ. July 6, 2007).
Tips from the EEOC
If you are a covered employer, here are a few tips from the EEOC to stay within the law and help with the process:
1. Employers are not required to hire a disabled person over a more qualified non-disabled person. The goal of the ADA is to provide equal access, not create unfair advantages.
2. A job offer can be withdrawn if it's clear that an applicant can't perform the essential functions of the job without posing a significant risk of harm, or direct threat to him or herself or others. Employers should, however, consider reasonable accommodations.
3. Keep in mind that you might be able to offset the cost of accommodations with tax credits.
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The ADA and Alcoholism:
Court Ruling Illustrates Reasonable Accommodations |
Although some business owners feel the ADA is punitive, employers often prevail. Look what happened when one company offered an accommodation ruled to be reasonable and the employee failed to hold up his end of the bargain.
Alex Nauseda supervised 14 employees for Tootsie Roll Industries in Chicago, doing work that
involved heavy machinery. If impaired by alcohol, Nauseda could have been a danger to himself and others. After entering a rehab hospital, he informed his employer that he was an alcoholic.
The company's accommodation was a daily Breathalyzer test to insure Nauseda was not under the influence of alcohol. He agreed and passed the test for two months. Then one day, he failed the Breathalyzer and was fired.
Nauseda sued, claiming that the employer hadn't reasonably accommodated his disability. In considering the case, the court noted:
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The company's policy strictly forbids all employees from reporting to work under the influence of alcohol, which Nauseda violated.
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The Breathalyzer test requirement was reasonable because Nauseda was a supervisor who worked with heavy machinery, and allowing him to work while under the influence would jeopardize the safety of others.
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Nauseda was not fired because he was an alcoholic, but because he failed the test. The ADA allows employers to hold alcoholics and illegal drug users to the same performance standards as other employees.
While noting that "alcoholism is very difficult to overcome," and that Nauseda "expressed an earnest desire to stop drinking," the court stated that was not unreasonable for the employer to need some additional assurance that the employee was reporting to work alcohol free. (Nauseda v. Tootsie Roll Industries, Inc., No. 02-C-2150, U.S. Dist. ND Ill., 2003) |
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LSSLC, LLC provides the information in this newsletter for general guidance only, and does not constitute the provision of legal advice or professional consulting of any kind. The information provided herein should not be used as a substitute for consultation with professional tax, accounting, legal, or other competent advisers. Before making any decision or taking any action, you should consult a professional adviser who has been provided with all pertinent facts relevant to your particular situation.
The information is provided "as is," with no assurance or guarantee of completeness, accuracy, or timeliness of the information, and without warranty of any kind, express or implied, including but not limited to warranties of performance, merchantability, and fitness for a particular purpose.
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