Understand and Respect the ADA
08/20/08
Executives at the Chuck E. Cheese restaurant chain no doubt wish they could turn back the clock and handle things differently than they did. A manager at one of the chain’s restaurants had hired an autistic, nonverbal, mentally retarded man to help clean up. He could do the job he was hired to do, and he even came to work with a job coach paid for by a local human-services agency.
But a district manager for the chain said he didn’t want one of “those people” working at one of his restaurants, and he fired him.
In evaluating a suit brought by the EEOC for violating provisions of the Americans with Disabilities Act (ADA), a local jury awarded the man $13 million in punitive damages. And while that award was reduced considerably not long ago, Chuck E. Cheese still sports a black eye.
ADA Defined
Title I of the ADA, which covers employers with fifteen or more employees, couldn’t be much clearer:
No covered entity shall discriminate against a qualified individual with a disability because of the disability of such individual in regard to job application procedures, the hiring, advancement, or discharge of employees, employee compensation, job training, and other terms, conditions, and privileges of employment.
Employees Must Still Do the Job
The ADA concerns itself with unfair discrimination only. It does not require you to hire, or keep on the payroll, people unable to perform the job.
Employment law attorney Wendy Smith elaborates: “Qualified for the purposes of the ADA means you are capable of performing the essential functions of the job with or without a reasonable accommodation. If an employee cannot perform the job’s essential functions, even with reasonable accommodation, the employee is not qualified.”
For example, say an employee working on a manufacturing line has to be at work on time, or the line shuts down. Punctuality is thus an essential function of the job. If a disability makes it impossible for him to get to work on time, and no accommodation can help him be punctual, he’s not qualified because he can’t perform an essential function of the job.
What’s a reasonable accommodation? It is, says the EEOC, “a modification or an adjustment to a job or the work environment that will enable a qualified applicant or employee with a disability. . . to perform essential job functions.”
When to Accommodate
For purposes of the ADA, a person is considered to have a disability when he or she:
has a physical or mental impairment that substantially limits a major life activity,
has a record of such impairment,
is regarded as having such impairment.
Disabilities range from an obvious physical handicap, like the loss of an arm, to less-obvious impairments like poor hearing, aids, mental illness, or a history of drug abuse. Short-term problems like a broken arm aren’t covered.
But the intent of the law is the same for everyone: If an employee with a disability can perform the essential functions of a job with an accommodation, it’s the employer’s responsibility to provide one.
ADA Starts with the Interview
Your obligations under the ADA begin with the interview. It is against the law to ask whether an applicant has a disability, for example, even if a disability is obvious.
In addition, you cannot require the applicant to take a medical exam before making a job offer. (But you can condition an offer on passing a job-related exam, assuming everyone in that position must have one.)
How, then, do you know whether an applicant can do the job? You can ask how he or she would do it, with or without an accommodation, and ask for a demonstration.
Be aware, too, that you may need to supply an accommodation as early as the interview process.
Say you have a job for which sight is not an essential function, and a blind person applies. You’ll need to help the applicant do such things as fill out the application form. But as with many accommodations, providing this one won’t break the bank—just have someone ask the questions on the application and fill in the answers.
On-the-Job Accommodations
Common are situations in which you have an employee who has been performing a job adequately for some time, and who then becomes disabled.
When that happens, it’s your job to change or adjust the work environment —barring undue hardship on you, the employer—so the person can continue to perform the essential functions of a job.
Such accommodations might include:
Providing or modifying equipment or devices.
Restructuring the job.
Reducing hours.
Offering unpaid leave.
Reassigning him to a vacant position.
Changing policies, work practices, or examinations. For instance, you may permit a person to come in later or do a job differently than others do.
Changing the physical configuration of the workplace to make it accessible.
Providing specialized training.
Rest assured, however, that you never have to eliminate a primary job responsibility or lower standards that everyone else in that job has to meet.
You also need not excuse a violation of a “uniformly applied conduct rule that is job-related and consistent with business necessity.” For instance, you can still discipline a person suffering from kleptomania for stealing.
And while an employee can often suggest accommodations, you don’t necessarily have to adopt them. Attorney Wendy Smith: “The ADA does not require that an employer adopt the accommodation that the employee most prefers. What an accommodation must do is effectively eliminate whatever barrier is preventing the employee from performing the job.”
It’s the Employee’s Job to Ask
The law says disabled people must let you know they require an accommodation. And a plain English request is sufficient-“Boss, my arthritis is making it harder and harder for me to push these buttons. I think I need some help.”
At this point, you can discuss what the employee thinks she needs and ask questions that help you make an informed decision. You can also request medical documentation of the disability if the need for an accommodation isn’t clear to you.
But don’t ignore problems. Smith: “The law envisions the accommodation process to be an interactive one that both employer and employee participate in. If it’s very clear that an employee needs an accommodation to perform the functions of a job, suggest one.”
Undue Hardship and the Law
You are not obligated to provide an accommodation if doing so would cause undue hardship. For example, a company with sales of $2.5 million wouldn’t have to install a $1.2 million elevator to accommodate an employee unable to walk up the stairs—assuming that was the least expensive accommodation available. Undue hardship isn’t only about cost. You need not provide accommodations that are unduly substantial or disruptive, or that would “fundamentally alter the nature or operation of the business.”
“But be aware,” says Wendy Smith, “that investigators and courts will attach significance to whether an employer made a good faith effort to find an accommodation before it claimed undue hardship.”
Keep It Private
Any employee health issues must remain strictly private, says the ADA, even if employees want to know why Joe gets an extra break every day.
And keep medical documentation and compliance data in a separate file accessible only to those with a need to know. That ensures no one makes an employment decision based on health issues.