Article contributed by Mark Adams
It seems that every year we hear about another law; requiring some sort of time off. State sick leave laws, federal and state family and medical leave laws, parental leave laws – the list seems to go on and on. For many employers, the patchwork creates a mindset that once the time has been exceeded under any of these laws, we can move on from an employee if they cannot return to work.
Nevertheless, there is one law that is still out there that is broad and flexible and often misunderstood – the Americans with Disabilities Act (ADA).
Originally enacted in 1990 and later amended in 2008, the ADA imposes two obligations upon covered employers (those with 15 or more employees). First, employers are not to discriminate against applicants or employees based on a disability when it comes to their job application procedures, hiring, firing, advancement, compensation, job training, and other terms, conditions, and privileges of employment. Second, employers must reasonably accommodate a disabled applicant or employee so long as it does not pose an undue hardship upon the employer.
When it comes to who is disabled, the 2008 amendments to the ADA have greatly expanded the scope. For purposes of coverage, an individual is considered disabled if they have a condition that either substantially limits one or more major life activities or major bodily functions. It also creates a presumption that a condition would be covered so long as the impact of the condition is not considered both transitory (lasting less than six months) and minor in scope. Finally, for conditions managed or controlled via medication or treatment, for purposes of evaluating its impact, one should consider the condition in its un-medicated or untreated state. Thus, an employee with Type II Diabetes whose condition is controlled or suppressed by insulin would probably still be covered under the Act. The Act also reaches out to protect not only those with an actual condition that is covered but also those who have had a past history of having such a condition even perceived as having such a condition (what I like to call “The Scarlet Letter” part of the Act for you literary buffs out there).
When it comes to reasonable accommodations, an employer needs to pro-actively engage in an interactive process as to how they can assist the person. When it comes to this interactive process, there are five components.
First, there is the need to identify and evaluate the options. At this step, an employer needs to get a handle on what limitations are that the individual is facing. Are they physical? Psychological? Learning impairments? What are they and how do they limit what the person can do based upon their job?
Second, there is the need to assess resources that may be available to assist in enabling the person in performing the essential functions of their job. Does that come in the form of job restructuring? Flexible scheduling? Modified equipment? A temporary leave of absence that enables them to rehabilitate? This step could lead to different options of course for large and small companies and further, vary in light of the job itself. (What it does NOT require is for an employer to lower their quality or production standards.)
Third, there is the need to implement. Your managers and supervisors will in all likelihood be taking the lead here based upon an agreed plan of action and ensuring that both the employee and management are on the same page when it comes to how the job is to be performed moving forward.
Fourth, there is the need to evaluate the effectiveness of the accommodations. Are they in fact meeting the expectations or not and if in fact the answer is no, documenting the shortcomings?
And last, but not least: the need to follow up. Managers and supervisors need to follow up with the employee and HR as to whether: A) the accommodation is successful or B) if it is not successful, then why not? In this latter case, the employer should re-evaluate and re-deploy this five-step approach to discern what other options may be on the table to pursue (of course, that do not provide an undue hardship to the employer).
What is an undue hardship? It is defined as an action requiring significant difficulty or expense when considered in light of factors such as an employer’s size, financial resources, and the nature and structure of its operation. Therefore, in short, there is no bright-line here. Rather, it is a case-by-case determination that ultimately is not determined until a case is brought forth and an employer is making their case as to why they could not accommodate. However, be warned that the Act’s framework and the cases over time have really made this a high bar to meet. Every accommodation has some cost or inconvenience tied to it, but is the impact of the accommodation significant financially or operationally?
So there it is – the Americans with Disabilities Act. It is a law that is not black and white, but rather requires employers to live and operate in the grey; making determinations in how they work with their disabled workers.