When it became law in 1990, the Americans with Disabilities Act (ADA) protected employees they didn’t have previously under federal law. Discriminating against someone because of their disability became just as illegal as if the deciding factor was race, color, sex, nationality, religion, or age. The ADA also required employers to reasonably accommodate disabled employees but didn’t create hard and fast rules on how to do that according to a mergers and acquisitions lawyer.
Which Employers Are Covered By The ADA?
It impacts those with 15 or more employees. Employers with fewer employees may be subject to similar state laws.
Who Is A Person With A Disability?
They:
- Have a mental or physical or mental impairment substantially limiting one or more major life activity
- Have a record or history of such an impairment or
- Are perceived as having such an impairment
Not hiring someone because you believe they have a disability is just as illegal as not hiring them because they have it or had it in the past as our friends at Focus Law LA can share.
Who Must Be Reasonably Accommodated?
Job applicants and qualified employees with disabilities must be reasonably accommodated. If a person needs help with the job application process or performing their essential job duties, you must reasonably accommodate them as long as it doesn’t cause you an undue burden or hardship.
A person is qualified to do the job if they can perform its essential functions with or without a reasonable accommodation. A job function is essential when:
- The job exists so this function can be performed
- Just a few employees can perform it
- The function is so specialized the employer fills the position with those with expertise in performing it
Many disabilities aren’t visible and you may be surprised who might need an accommodation. You may need to accommodate someone due to a learning, emotional, or psychiatric disability. Employees may start not needing accommodation, but that may change as they age or suffer a severe accident.
What Is A Reasonable Accommodation?
It’s an accommodation that allows an employee to perform an essential job function. It varies by the job and employee. Depending on how they’re affected, you could have more than one employee with the same disabling condition, but they need different accommodations.
There may be lifting that other employees could do, schedule changes due to medications or to attend medical appointments, or the ability to sit while performing a job instead of standing an entire shift.
What Is An Undue Burden?
Employers can balance an employee’s need for a reasonable accommodation against their need to avoid an undue burden or hardship. That’s something that would be too difficult or costly to provide, given the employer’s size, financial resources, and business needs.
How Should An Employee And Management Work Out Their Differences If A Requested Accommodation Is Rejected?
If an employer doesn’t like what the employee suggests, they should come up with another reasonable accommodation that effectively addresses the employee’s needs while avoiding undue hardship. The two parties should engage in an interactive process to solve the problem, not impose their will on the other. They should try an accommodation and meet later to see how well it works. If it doesn’t, a different approach should be tried.
If reasonable accommodation is not possible without an undue burden and the employee cannot perform the job’s essential functions unless there’s an open position the person can fill (or management wants to create one), the employer may have legal grounds to lay off the employee.
Before it gets to that point, you should discuss the issue with an attorney for help addressing it in a way that won’t expose your business to potential legal liability.