Employers have various responsibilities, some imposed by internal work laws and others by Federal and state laws. The American Disabilities Act, commonly known as ADA, is one of the Federal laws that employers have to pay attention to keenly. As an employer, most of your employees are drawn from diverse abilities; therefore, persons with disabilities probably form part of your workforce. Unlike everybody else, persons with disabilities have special needs; therefore, the employer must accord them with reasonable accommodation. When an employee asks for a “reasonable accommodation” you need to know what to do.
In my line of duty as an attorney, I have had a chance to advise clients on the ADA. The common issues that I have always had to address are:
How to determine whether an employee has an ADA disability
As humans, there are several major life activities that any able person can perform with ease. Some of these major life activities include eating, walking, performing manual tasks, self-care, standing, and major bodily functions, among many others. While such activities are easily doable for someone with no disability, the case is different for those who have a disability. Therefore when determining whether an employee has an ADA disability, an employer has to pay attention to whether even after using mitigating measures, such a person is still substantially limited in the performance of activities like walking, self-care, working etc.
What are mitigating measures?
An amputee might choose to use a prosthetic foot to help them move around. In the same regard, someone with a hearing impairment can use implantable hearing devices to help them hear. These are just some of the things recognized by the ADA as those that can lessen the effects of a disability.
What is a substantial limitation?
Substantial limitation, according to the ADA, is whereby an employee’s ability to perform major life functions is limited, especially when compared with the ability of the general population. Even persons suffering from depression have been classified as those who can qualify as substantially limited hence qualifying for an accommodation under the ADA.
Therefore for an employer to determine whether an employee has an ADA disability, such an employee must still have substantial limits when performing major life activities even after when using mitigating measures. Remember that the ADA does not give a list of those impairments either mental or bodily that qualify as disabilities with substantial limitation. As an employer, you are under an obligation to consider the effects a disability has on an employee. Therefore even mental conditions that inhibit the effort an employee can put into their work can be considered as a disability deserving of accommodation under the ADA.
What is reasonable accommodation according to the ADA?
The ADA has covered various employment practices by considering them as unlawful because they don’t offer reasonable accommodation to people with disabilities. Almost every employment activity is covered under the ADA ranging from recruitment, payment, job assignments etc. It is therefore unlawful under the ADA to discriminate against someone with a disability right from recruitment. Employees have the right to demand their rights under the ADA. As an employer, you are under a duty to undertake various procedures to determine the disability and proceed to accord the employee the requested accommodation or dismiss the request dependent on the finding.
The responsibility to provide reasonable accommodation is only applicable where the employee has the actual disability they claim to suffer from. Employers can ask employees to furnish them with any documentation that shows the existence of the disability. Therefore when an employee alleges that they have a disability, their allegations don’t form an authority but rather a basis for further determination.
Examples of reasonable accommodation
When facing accommodation requests even during the determination of the existence of the disability; the due diligence you can conduct as an employer is to find out whether you have the capability of providing the requested reasonable accommodation. Also, consider the effects that such accommodation will have on your business.
Some of the issues that my clients always battle with are what can be considered as a reasonable accommodation. Here are some of the types of accommodations you can undertake to ensure that you comply with the ADA.
Allow flexibility
An employee battling PTSD or depression might have difficulty sleeping at night despite using the necessary prescriptions. Such an employee might request for flexible working hours hence not ending up as strenuous on their end. Additionally, it could be fair where possible to let the employee undertake their duties remotely.
Accord reserved parking
Due to the nature of the disability, the employee might require a special parking spot. An employee who is an amputee, for example, will require some special treatment when it comes to parking space.
Make the work environment more accessible
Providing reasonable accessibility in the work environment for an employee on a wheelchair is one of the ways through which your work environment can be accommodative to all people regardless of their bodily shortcomings.
Make changes to the job tasks
Due to a disability, an employee who could comfortably perform heavy tasks in the past might have to take on lighter duties. Paying attention to the current needs of the employees and consulting with disability experts can help you come up with job tasks that the employees seeking accommodation can comfortably handle.
One piece of advice that I have always shared with my clients is never to ignore any legal responsibilities because the subsequent repercussions can be heavy on the business. Put simply, don’t ever think of an employee requesting a reasonable accommodation as someone who is requesting “vacation.” That is a totally separate topic in and of itself.
Legal consultation is, therefore, an essential service for anyone looking to be compliant with employment laws and especially the ADA. For a much more detailed guide, straight from the horse’s mouth (the EEOC), you can take a look at this page: https://www.eeoc.gov/laws/guidance/enforcement-guidance-reasonable-accommodation-and-undue-hardship-under-ada