Happy Birthday ADA and How We Can Celebrate
The Americans with Disabilities Act (ADA) is 25 years old this year. I was a newly minted lawyer when this law emerged in 1990 and as I have grown, so have the number of disability discrimination lawsuits. In celebration of the ADA’s birthday, I thought we could celebrate with a quick review of an employer’s legal obligations when an employee needs a reasonable accommodation.
If you have 15 or more employees, the ADA requires that you provide your employees with disabilities reasonable accommodations to enable them to perform the essential functions of their jobs. To determine what reasonable accommodations you have to provide, you must engage in a discussion with the employee about what reasonable accommodations are available and consult the employee’s doctor or others if necessary. While this sounds fairly straightforward, many of my clients have found it full of landmines. Below is how this process would proceed in a perfect world.
STEP ONE: EMPLOYEE IDENTIFIES A DISABILITY AND THE NEED FOR A REASONABLE ACCOMMODATION.
The good news is that employers do not have to be mind readers—the employee actually has to request an accommodation. So, your employee raises her hand and says, “I am disabled a need a reasonable accommodation.” What’s next?
Be careful not to get too hung up on whether they are “really disabled.” The ADA defines disability very broadly and it is not worth most employer’s time or money to fight about whether the employee’s sleeping disorder or blood disease or any other medical problem that seems to bear little relation to their job duties qualifies as a disability. People have a wide variety of problems these days that can qualify. One client called about a receptionist who was eating toilet paper at her desk—which we then learned was called Pica Syndrome. Who knew there was a name for that and is it really a disability you need to accommodate? More importantly, is it worth a lawsuit to find out? In most cases, if the employee discloses a physical or mental impairment, move to Step Two.
STEP TWO: BEGIN THE INTERACTIVE PROCESS.
You have to talk to the employee about what reasonable accommodations the employee wants and what you are willing to provide. The key is to not dismiss any employee’s disability or requested accommodation out of hand. You must consider whether the requested accommodation will enable the employee to perform the essential functions of the job. If you reject the request without serious consideration, no matter how outrageous it sounds, you could lose a subsequent lawsuit. In one notable case, Keith-v-County-Oakland, an employer did not hire a deaf applicant for a lifeguard job because of “risk management concerns.” Had the employer engaged in the interactive process, it may have learned that there are plenty of hearing impaired lifeguards—so there are reasonable accommodations available, and avoided the lawsuit entirely. Instead, it later settled the case.
You also must not make assumptions about what the employee can or cannot do based on what you know about the condition. Your employee’s diabetes may not be anything like your cousin’s diabetes (and she doesn’t need an accommodation). Instead, talk to the employee about alternatives for his particular disability.
This is an interactive process—you don’t necessarily have to give the employee what he wants. If you have an accommodation that works, you can use it—even if the employee doesn’t like it.
Remember that it is never a reasonable accommodation if you have to reassign essential functions of the job (but be careful about those non-essential functions) or the employee’s continuation in that job poses a significant risk of substantial harm to himself or others. If you identify a reasonable accommodation, go to Step Three.
STEP THREE: DETERMINE IF THE ACCOMMODATION IS AN UNDUE HARDSHIP.
I am sad to report that the answer to this one is almost always “no.” If you can provide the accommodation and it will enable the employee to perform the essential functions of the job, unless it will bankrupt your company, the EEOC will probably not consider it an undue hardship. Courts, on the other hand, are a little friendlier and have found that if the cost of providing the accommodation is prohibitive (e.g., more than the employee’s salary), it is not reasonable.
STEP FOUR: IF YOU CAN’T ACCOMMODATE THE EMPLOYEE IN THE CURRENT JOB, DETERMINE IF THERE IS A VACANCY.
Many employers miss this step. If you have concluded that you cannot provide a reasonable accommodation, you must consider if there are any vacancies for which the employee is qualified in which you can accommodate the disability. You do not have to create a vacancy. You do not have to change the qualifications for the vacant job—if it requires a specific license or degree the employee lacks, you do not have to put the employee in that position. You cannot, however, require the employee to compete for the job—you have to give it to them as a reasonable accommodation. (The EEOC recently settled a case for big money against the University of Michigan for its policy declaring that jobs would go to the “best qualified” applicant, even if the competing employee was seeking the position as a reasonable accommodation.) Finally, you can pay the employee what the vacant job is worth. Unlike the FMLA provision under which you temporarily transfer an employee and have to maintain his or her salary level, under the ADA the move to the vacant job (1) does not have to be temporary and (2) does not require that you maintain the old salary.
STEP FIVE: DETERMINE IF LEAVE IS A REASONABLE ACCOMMODATION.
If you cannot provide an accommodation that enables the employee to do the current job and you don’t have a vacancy, think about whether leave is a reasonable accommodation. Leave works best in situations in which the employee needs a block of time for treatment or a medication adjustment. Indefinite leave is not a reasonable accommodation, so get the employee or the treating physician to tell you whether leave would help.
The ugly truth is that sometimes you cannot accommodate a disability. When you get to the end of the interactive process, make sure you have jumped through all the necessary hoops so you are in the best position to defend the potential lawsuit.