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Fighting for workers' rights
WHAT IS THE AMERICANS WITH DISABILITIES ACT?
Congress passed the Americans with Disabilities Act (ADA) (42 U.S.C. § 12102) in 1990 in response to the disability rights movement. A long history of discrimination culminated in what many regard as the “declaration of independence” for those with disabilities. The Act has since been amended in 2008, with some significant changes making it easier for people to qualify as disabled. The Act requires employers to adhere to certain requirements, including providing reasonable accommodations to enable employees to perform their job’s essential functions. Employers are required to determine eligibility for accommodations through an interactive process. Employers must provide an accommodation in many cases unless doing so would place an undue hardship on the employer.
What is the definition of a disability under the ADA?
The ADA defines a disability as “a physical or mental impairment that substantially limits one or more major life activities, a record of such an impairment, or being regarded as having such an impairment.”
Major life activities involve those activities that are essential to most people’s everyday lives. As to what is a major life activity, the act provides:
“major life activities include, but are not limited to, caring for oneself, performing manual tasks, seeing, hearing, eating, sleeping, walking, standing, lifting, bending, speaking, breathing, learning, reading, concentrating, thinking, communicating, and working.”
Note major life activities also include major bodily functions, defined by the act, as follows:
“(B) Major bodily functions
a major life activity also includes the operation of a major bodily function, including but not limited to, functions of the immune system, normal cell growth, digestive, bowel, bladder, neurological, brain, respiratory, circulatory, endocrine, and reproductive functions.”
Special Treatment and Disparate Treatment
Congress recognized that disabled employees deserve special treatment in order to have equal job opportunities and benefits. For an employer to lawfully treat an employee with a disability disparately (disparate treatment), the disabled employee must be “unable to perform the essential functions with or without reasonable accommodation.” In other words, if a disabled employee cannot be accommodated, then the employer is allowed to treat that employee disparately.
However, if a disabled employee is qualified and does not need an accommodation, then the employer cannot treat that employee differently.
Note, if the disabled employee can perform the essential functions with an accommodation, then the employer must provide that accommodation – in other words, they must treat that employee differently to enable them to perform the essential functions.
Accommodation Requirement
Employers have a duty to provide a reasonable accommodation if an employee would be able with the accommodation to perform an essential function the employee would otherwise be unable to perform. However, this requirement has limits. Employers may avoid the reasonable accommodation requirement if providing the accommodation would create an “undue hardship” on the employer. Employers cannot simply claim that providing an accommodation would create an “undue hardship.” They must engage in an interactive process.
PRACTICE AREAS
The Interactive Process Requirement
Employers who seek to claim it would be an undue hardship to accommodate an employee are guided by requirements under the ADA § 102(b)(5)(A). An undue hardship is an accommodation that would involve “significant difficulty or expense.” Such a determination involves the consideration of factors such as the size and resources of the employer. The burden is on the employer to demonstrate that an accommodation would present an undue hardship. In order to demonstrate such a hardship, the employer and the employee engage in an “interactive process.” Such a process is a negotiation between the disabled employee and the employer to find an accommodation that works for both parties. This places obligations on both the employer and the employee.
Creating a “Reasonable Accommodation
The goal is to create a reasonable accommodation, which is a way that the employee can perform the job. This may involve changing the way the job is required to be done, or changing the work environment, doing so in a way that enables an otherwise qualified individual to perform the essential functions of the position.
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Reasonable accommodations may include, for example:
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Adjustments to work hours and schedules
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Changes or additions to workstations, chairs, or desks.
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Making facilities accessible
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Allowing and enabling employees to be able to lie down or take breaks
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Allowing the employee to be excused from having to perform tasks, tasks which are not “essential functions”, and which would not impose on other employees
If you believe you have been subjected to discrimination based upon a disability or have any questions regarding your rights in the workplace, please contact Dunn Employment Law at (203) 907-7650.
