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Reasonable Accomodation and the ADA - Courts Draw the Line

The Americans with Disabilities Act (ADA) was enacted into federal law on July 26, 1990. Different sections of the ADA went into effect at different times in 1992. Since then, more than 40,000 complaints have been filed with the Equal Employment Opportunity Commission (EEOC), the federal agency responsible for enforcement. Although the ADA addresses discrimination in employment, public services and accommodations, transportation, and other areas, the vast majority of claims involve discrimination in employment.

The purpose of the ADA is to make employment opportunities available to as many people as possible, even if it means the employer must go out of its way to accommodate the special needs of a particular employee.

As with many employment law issues, the courts seem most impressed and swayed by a company's earnest efforts to resolve problems as early as possible. To date, the courts have routinely held in favor of employers who, despite good faith efforts, have not been able to accommodate the employee. The courts, however, have ruled against employers who react on impulse or prejudice and do not attempt to accommodate a disabled employee.

Skeptics note that the largest number of complaints deal with back pain and emotional impairment , as opposed to disabilities such as loss of limbs or paralysis. A change in the extent of the Act is possible, but not imminent. Given the present parameters of "disability," employers should be aware of the ADA's legal ramifications in their employment practices. The obligations of the employer, however, depend on the circumstances of each case. The requirements of the ADA were purposely kept broad and somewhat vague to protect as many employees and potential employees as possible.

ADA Buzzwords

The ADA applies to all companies with 15 or more employees as well as all state and local governments and agencies. It protects from discrimination otherwise qualified people with disabilities who can perform the essential functions of a job regardless of whether a reasonable accommodation by an employer is needed. Employers cannot discriminate against people with disabilities in any and all phases of work, including pre-hiring, hiring, employment and termination. To date, court rulings have primarily involved terminations.

The term "qualified" refers to individuals who are capable of doing the essential functions of the job. The term "essential functions" means, for instance, that a firefighter must be able to carry heavy loads but does not need typing skills. A secretary, however, does not have to carry heavy loads but must be able to type. The term "reasonable accommodation" usually involves meeting an individual's needs through access, work schedule or adaptation of facilities.

While employers are legally required to make accommodations to overcome barriers that restrict the disabled, they are NOT mandated to make these "reasonable accommodations" if they would cause undue hardship to the company. The term "undue hardship" applies to any accommodation that is excessively costly, extensive, substantial, or disruptive. The courts review what actually constitutes a hardship on a case-by-case basis.

The Courts Decide

To give more meaning to vague and general terms, employers can now turn to both the state and federal courts, which have, in the past two years, issued decisions that are a source for practical advice and guidance. These case decisions, moreover, act not only as a guide but also demonstrate a pro-employer trend, as long as the employer has acted with concern for the employee. The courts have already been faced with many opportunities to decide what constitutes a reasonable accommodation and, generally, have been supportive of the employers' good faith efforts.

In many instances, the employers have even been able to avoid trial by successful moving for summary judgment . (A motion for summary judgment is made at the end of the discovery period, after the parties have engaged in depositions, interrogatories, and document production.) Summary judgment is granted by courts only when the material facts are not in dispute, and the employer is entitled to win "as a matter of law." The courts' willingness to grant summary judgment motions is a good sign for employers. These rulings give employers clear guidelines as to the extent of their responsibilities under the ADA and what constitutes acceptable compliance with the ADA's requirements.

Some important examples of cases filed under the ADA are as follows:

In Harmer v. Virginia Electric and Power Company, the employee had a pulmonary disability. When his employer denied his request that the entire workplace be declared smoke-free, the employee sued under the ADA. The court found that a reasonable accommodation would be the addition of fans, air purifiers, and smoke-free sections of the workplace and, therefore, denied the employee's claim.

In Eisfelder v. Michigan Department of Natural Resources, an employee had multiple sclerosis and required time off from work for surgery. Instead of granting the request, the employer terminated her. The employer's motion for summary judgment was denied. The court found that to modify slightly the employee's work hours and to permit her to take two months of accumulated annual leave for sick time, as the employee requested, would appear to be a reasonable accommodation. This case is a valuable lesson for employers. If minor accommodations had been made, there probably would not have been a lawsuit.

In Wooten v. Columbus Division of Water, the court ruled that a reasonable accommodation for a mechanic who could not lift more than 20 pounds would be to reassign him to a vacant position with duties that he could perform.

In Vande Zande v. Wisconsin Department of Administration, the court, ruling in favor of the employer, noted that the employer had taken extensive measures to reasonably accommodate a paraplegic state employee. The employer permitted the employee to work at home while her pressure ulcers healed, purchased customized furniture for her, altered her work schedule as needed, and redesigned office facilities. Despite the employer's actions to accommodate, the employee quit and subsequently sued for discrimination. The court said the former employer had acted reasonably.

Guice-Mills v. Derwinski involved a head nurse at a hospital who was on a workshift with inflexible hours. She told the court she could not work the early morning part of her shift due to depression and a nervous problem. The hospital needed nursing coverage during that time for continuity of care. In an effort to accommodate the nurse, the hospital transferred her to a staff nurse position, which she refused. The court ruled in favor of the hospital by granting it summary judgment. The court ruled in favor of the hospital by granting it summary judgment. The court stated: "When an employer offers an employee an alternative position that does not require a significant reduction in pay or benefits, that offer is a reasonable accommodation as a matter of law."

Tyndall v. National Education Centers involved excessive absences. The employer prevailed on the basis that the employee was not "otherwise qualified" because she was excessively absent. The court said, "An employee must be willing and able to demonstrate the skills by coming to work on a regular basis." The employer attempted to accommodate the worker, but seven weeks of leave over an eight-month period justified her termination.

What Should an Employer Do?

Before an employee is terminated, the employer should consider whether the employee will have a potential claim under the ADA. The same framework applies when an employee desires an accommodation under the ADA in order to continue working, as well as when a conditional offer of employment is made subject to a physical examination.

Specifically, the employer should ask: Is the worker qualified or not? Did the employer try to reasonably accommodate the worker's needs to enable the worker to perform? Did the worker have a disability which, without a reasonable accommodation, prevented the employee from performing?

ADA complaints are on the rise. With the wealth of claims being filed citing low back pain and stress as disabilities, Congress may act to narrow the definition of disabled. Until then, the employer must be ready to determine how a worker claiming a disability can remain a productive part of the company. That was and remains the purpose of the Act.

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