Americans with Disabilities Act--Employers and EmployeesNov. 26, 2012
Americans with Disabilities Act
The Americans with Disabilities Act prohibits discrimination in the recruitment, hiring, training, promotion, pay, termination and other privileges of employment regarding qualified individuals with a physical or mental disability. The Act requires an employer, on request of the employee, to provide a reasonable accommodation to qualified individuals in order to enable the employee to perform the essential functions of the job. The accommodations are determined through an interactive process between the employer and employee.
What is a Disability?
The first question in a disability case is "what is a disability?" The ADA does not list any specific impairments or limitations which qualify as a disability, although it does list some conditions which are not to be considered a disability; rather, the Act defines a disability, with respect to an individual, as (a) a physical or mental impairment that substantially limits one or more major life activities of such individual; (b) a record of such an impairment; or (c) being regarded as having such an impairment.
An impairment under the ADA is judged by three criteria: its nature and severity. its duration and its impact. The assessment is to be made without regard to auxiliary aids or medication. Usually, the impairment inquiry is reasonably clear. For example, minor vision loss such as 20/40 vision is not severe enough to qualify. However, a person with an artificial leg is substantially impaired because of the duration and impact of the condition. Likewise, while pregnancy may limit certain major life activities during the period of pregnancy, it is a condition which is short-term in duration and without long-term impact. Generally speaking, if a condition lasts 6 months or more, it may rise to the level of disability. If the condition is not obvious, the employer may request documentation, and if the employee does not produce documentation, the inquiry ends. Additionally, the employer may request the employee undergo an independent medical examination related to the disability and assessing functional limitations related to any accommodation
Once an impairment is determined, the next inquiry is whether a major life activity is substantially limited by that impairment. EEOC regulations implementing the ADA define "major life activities" to include caring for oneself, performing manual tasks, walking, seeing, hearing, speaking, breathing, learning, and working, as well as the operation of all major bodily functions. Courts have identified additional major life activities, such as sitting, standing, bending, communicating, lifting, reaching, sleeping, eating, reading and mental/emotional processes such as thinking, concentrating and interacting with others. A major life activity is "substantially limited" if it prevents or severely restricts an individual from doing activities that are central to most people's daily lives.
What Accommodations Must Be Provided?
Once it is determined that a person is disabled and an employee requests an accommodation, the employer must start the interactive process. It should be noted that there are no "magic words" or required forms which start the request--if an employee, for example, tells a supervisor that his wheelchair does not fit under his desk, or that she will be undergoing chemotherapy over the next two months, the employer should treat this as request for an accommodation.
The informal interactive process required is merely a discussion between employer and employee about what reasonable changes to the employee's work environment would enable the employee to perform the essential functions of his or her job. A reasonable accommodation may be, for example, a large computer monitor for a vision-impaired employee, a modified schedule for someone undergoing periodic treatment, or providing a stand-up desk for someone with a back condition. It may also include reassignment to a vacant position, or leave time to obtain training such as braille reading or sign language or training a service animal. An accommodation is not reasonable if it would place an undue hardship on the employer in terms of cost and nature or to assign essential job functions to another employee.
As with all employment matters, the ADA process should remain confidential to the extent practical, although often the accommodation will be obvious to co-workers. All disability qualifications and accommodations should be coordinated through Human Resources.