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Published: 2008-03-26

Employment Law: Employer's Duty to Accommodate an Employee's Disability



Introduction

In passing the Americans with Disabilities Act (ADA) in 1990, Congress attempted to level the playing field for disabled workers. The ADA requires employers to make reasonable accommodations so that workers with disabilities can secure and retain employment. The ADA has had a positive effect on the placement of individuals with disabilities in the workforce. By requiring employers to make reasonable accommodations, the ADA has raised the consciousness of U.S. employers and reduced discrimination against the disabled. The language of the ADA, however, is not precise as to the accommodations required. As a result, employers and employees are often in conflict over the nature and extent of accommodations the employer must provide. Courts around the country also disagree on this issue. Until Congress or the Supreme Court offers greater clarification, many accommodation disputes will end up in court.

What is Reasonable Accommodation?

The ADA prohibits employers from engaging in a broad range of discriminatory conduct on the basis of an employee's disability. Employers may not limit, segregate or classify jobs in such a way as to discriminate; contract or arrange with others to discriminate; utilize discriminatory standards, criteria, or methods of administration; or exclude or deny qualified individuals from jobs or benefits on the basis of disability. In addition, an employer must make "reasonable accommodations to the known physical or mental limitations of an otherwise qualified individual with a disability." Congress might have stopped with this language and allowed employers and the courts to determine what steps reasonable accommodation required. Instead, the law provides an exception if accommodation would cause "undue hardship" to the employer's business. The ADA therefore strikes a balance between the accommodations an employee desires to meet the job's requirements, and the investment and modifications an employer has to make to accomplish the accommodations.

Reasonable accommodations under the law can include changes to the physical work environment, or to the job. Changes of the former type include making facilities accessible and usable for persons with disabilities. Such changes might include wheel chair access doors, ramps or elevators, handrails, different chairs, desks or computers, different lighting, and different configurations for furniture or machinery. Job changes include such things as restructuring the job, shortening or modifying the work schedule, transferring the employee to another vacant job, acquiring or modifying necessary equipment, and adjusting examinations, training materials or policies.

"Undue hardship" under the ADA means "significant difficulty or expense" for the employer. Factors the employer may consider in weighing undue hardship include: 1) the nature and cost of the accommodation; 2) the financial resources of the facility requiring the accommodation; 3) the number of workers at the facility; 4) the impact of the accommodation on the facility's expenses, resources or operations; 5) the employer's overall size, nature and resources; 6) the type of operations covered; and 7) the relationship between the facilities covered and the business entity (employer) as a whole.

The standards for reasonable accommodation and undue hardship have proven difficult for courts to apply. Employers are only required to accommodate a disability of which they know. An employee cannot bring an ADA claim for an undisclosed condition unknown to the employer. Additionally, sometimes the parties disagree on whether the employee's condition is a disability under the law. Deafness and quadriplegia are clearly disabilities, but many conditions are harder to judge. Is a sore back a disability? What about poor eyesight? The Supreme Court recently held that poor eyesight was not a disability where it could be corrected with glasses; thus, two twins who wanted to be pilots, but lacked the required vision, were not disabled under the ADA. The fact that the glasses gave them normal eyesight meant they were not disabled, even though the airline that refused to hire them based its decision on their uncorrected vision.

Assuming the employer does not contest the employee's disability, the next question is the required accommodation. The ADA does not specify who is supposed to take the initiative in accommodating the employee's disability. Thus, employers do not know whether it's their duty, or the employee's, to propose changes that would allow the employee to perform the job. The EEOC's position is that the employer and employee should engage in an interactive process to discover what measures would be appropriate. This position has not been established in federal regulations, however, and is not binding on the courts. As a result, some courts require an interactive process with the employer taking some affirmative role, and some do not.

Courts determine the reasonableness of the accommodation on a case-by-case basis. What might be reasonable in one context may not be in another. For example, if a person in an office job needed help from another employee to lift items weighing over 25 pounds, such help may be totally reasonable. An airport baggage handler who could not lift over 25 pounds, however, could not reasonably rely on the same help. In the latter instance, the assistant would be performing a substantial portion of the individual's job. Courts look at the essential functions of the job. If the employee cannot perform the job's essential functions with or without reasonable accommodation, the employee is not qualified for the job. An employer does not discriminate by denying a job to a person who is not qualified to perform it. In addition, an employer does not need to hire or retain persons who pose a threat to the safety of others--for example, a person with a mental disability who was prone to outbursts of violence.

The ADA protects disabled individuals during the hiring process by prohibiting employers from inquiring about disabilities or subjecting prospective employees to medical tests before hiring them. Employers may, however, ask about a candidate's abilities concerning essential job functions. After making a job offer, the employer may require a medical examination, so long as the examination is given to all newly hired employees.

Conclusion

The Americans with Disabilities Act is an important law, helping millions of people with disabilities to join the nation's workforce. Yet it is also a fairly recent law, which employers and courts are still working to understand and apply. Individuals with disabilities have a right under the ADA to the same opportunities and benefits as the non-disabled. As long as an individual with disabilities is otherwise qualified for a position and able to perform its essential functions with or without reasonable accommodations, the employer cannot discriminate against the employee. Which accommodations are reasonable, and which create an undue hardship, may be difficult questions to answer. Ideally, employers and employees can work together to create a solution that works for both parties and sustains a good working relationship. Given the ambiguities in the law, however, some conflict is inevitable. Individuals encountering discrimination on the basis of disability should consider consulting an attorney.

Mercy, Carter & Elliott, L.L.P. and the ADA

Mercy, Carter & Elliott, L.L.P. helps individuals with disabilities and employers to protect their legal rights. We have handled numerous cases involving workplace discrimination, including questions of reasonable accommodation. If you would like our assistance with an issue involving disability and employment, you can contact us at:

1730 Galleria Oaks Drive
Texarkana, Texas 75503
(903) 794-9419
(903) 794-1268 (facsimile)
(877) 499-9419 (toll free)
www.mercylawfirm.com