November 2017

In this month’s HR Advisor Newsletter, we’re focusing on the Americans with Disabilities Act (ADA). Check out the article on the federal law’s most important terms and the news brief on a recent court case related to the ADA. We also discuss the high cost of ADA claims and some tips for avoiding discriminatory language in Page 2 of 8 your job postings.

Four misunderstood Terms in the Americans with Disabilities Act

The Americans with Disabilities Act (ADA) applies to a lot of organizations—all public employers and any private employer with 15 or more employees. Nevertheless, there’s a lot of confusion about what the law requires and what its terms entail. A big reason for this confusion is the language of the law itself; the ADA speaks of nebulous concepts like undue hardship and reasonable accommodation. Words like undue and reasonable are by their nature open to some interpretation, which is not exactly a comfort to employers.

Fortunately, while there’s no getting completely around the inherent ambiguity of the ADA, employers can feel confident in their application of the law by reviewing and understanding its most important concepts. In this article, we’re going to define and analyze the terms disability, undue hardship, reasonable accommodation, and interactive process. These are the big four terms to know.

Disability

Let’s start with the term disability. According to the ADA, a person with a disability is someone who has a physical or mental impairment that substantially limits one or more major life activities, someone who has a history or record of such an impairment, or someone who is regarded as having such an impairment.

While the law does not name every impairment that would be covered, it does identify some major life activities that could be limited by a disability. These include caring for oneself, performing manual tasks, seeing, hearing, eating, sleeping, walking, standing, lifting, bending, speaking, breathing, learning, reading, concentrating, thinking, communicating, and
working.

The most often misunderstood part of this definition is the phrase “regarded as disabled.” This phrase becomes important if the employer takes any adverse action because they believe a disability may exist. For example, if a hiring manager removes a candidate from consideration
(adverse action) because the manager believed, rightly or wrongly, that the candidate has social anxiety, then the manager has illegally discriminated against the candidate because they regarded the candidate as disabled. In this situation, the candidate—even if they did not have
social anxiety—would have a claim under the ADA.

Reasonable Accommodation

Employers also encounter the ADA when an applicant or employee asks for a reasonable accommodation. According to the Equal Employment Opportunity Commission (EEOC), a reasonable accommodation is “any change in the workplace or the way things are customarily done that provides an equal employment opportunity to an individual with a disability.” Reasonable accommodations “can cover most things that enable an individual to apply for a job, perform a job, or have equal access to the workplace and employee benefits such as kitchens, parking lots, and office events.”

Common types of accommodations include modifying work schedules, altering the way job duties are done, eliminating a non-essential job duty (like asking the receptionist to stack the monthly 100-lb paper delivery in the storage room), granting additional breaks, providing accessible parking, and providing materials in alternative formats (e.g., Braille, large print).

Not every requested accommodation will be reasonable, however. For one, employers are not required to remove an essential job function (the receptionist can still be expected to answer the phone). Employers also aren’t required to lower production standards or provide items for
personal use, like wheelchairs or hearing aids.

If an accommodation is made, it’s important to assess its effectiveness. An accommodation set up today might not work well for the employee or the company two years from now. It’s okay to reassess later whether an accommodation remains reasonable given changed circumstances.

Undue Hardship

Under the ADA, an employer is required to provide reasonable accommodations as long as doing so does not create an undue hardship on the organization. According to the EEOC, an undue hardship is a significant difficulty or expense. The cost of an accommodation could be
an undue burden on the employer, but so could an accommodation’s duration, expansiveness, or disruption.

An accommodation that would fundamentally alter the nature or operation of the business would be an undue hardship, even if the cost was negligible. But if cost alone is the basis for claiming an accommodation is unreasonable, employers should remember that the standard is “significant expense.” The federal regulations instruct employers to consider the size of the organization and affected facility, their overall financial resources, and any tax credits, deductions, or outside funding available. Whether an accommodation would cause an undue hardship is something employers must assess on a case-by-case basis.

Interactive Process

If an employee requests an accommodation, the employer should engage in an interactive process to determine if it is reasonable. The EEOC describes the interactive process this way: the employee and the employer “communicate with each other about the request, the precise
nature of the problem that is generating the request, how a disability is prompting a need for an accommodation, and alternative accommodations that may be effective in meeting an individual’s needs.”

Basically, the interactive process is an ongoing conversation with an employee who has indicated that they need an adjustment or change at work related to a physical or mental issue. They may specifically request a reasonable accommodation under the ADA, but expressing their needs in “plain English” is acceptable as well. Then, together, the employer and the employee determine what can be done to accommodate the employee so that the essential functions of the job get done to the employer’s standards and the employee is able to enjoy the equal benefits and privileges of employment.

If you’d like to learn more about the Americans with Disabilities Act, search ADA on the Support Center. We have guides, 2 Minute HRs, and other articles on this important federal law.

Content Spotlight

We receive a lot of questions related to the Americans with Disabilities Act. To see the questions our clients have asked and the answers our HR Pros have given, go to the Q&A Stream under the Learning tab on the Support Center, then type ADA in the search bar.

News Brief

The Seventh Circuit Court of Appeals recently ruled that a long-term leave of absence is not a reasonable accommodation under the Americans with Disabilities Act (ADA), concluding that the ADA is an antidiscrimination statute and not a medical-leave entitlement. The court
reasoned that because a long-term leave does not enable an employee to work, it cannot be a reasonable accommodation.

Employers, however, should not necessarily assume they can deny requests for extended leave under the ADA. For one, the Seventh Circuit Court of Appeals only has jurisdiction over Illinois, Indiana, and Wisconsin. For another, the Equal Employment Opportunity Commission (EEOC)—which has the power to file lawsuits against employers nationwide—has not adopted that position, and still considers leaves to be a reasonable accommodation in many cases.

We will continue to monitor court rulings and EEOC actions related to this question. In the meantime, we recommend that employers continue to engage in the interactive process when employees or applicants request a reasonable accommodation.

Did You Know?

In 2016, more than 28,000 charges of disability discrimination were filed with the EEOC, and these don’t account for claims filed with state equal employment agencies. Although nearly 19,000 of those investigations were closed with a finding of “no reasonable cause,” many claims have multiple bases; a person could succeed on a retaliation claim even if they were unsuccessful in showing disability discrimination. Additionally, the EEOC’s finding of no reasonable cause doesn’t prevent an employee from filing a lawsuit on their own.

The 9,000 or so cases that continued through the EEOC’s conciliation, settlement, and litigation processes resulted in total awards of more than $131,000,000. About $12,000,000 was awarded to those who experienced discrimination because they had a history of a disability, and about $18,000,000 was awarded because an employer took adverse action when they regarded an employee as disabled.

HR Tip of the Month

Avoid discriminatory job postings by being realistic about what a position actually requires of an employee. It’s fairly common to see a list of physical requirements in a job ad, and oftentimes they’re over the top. For instance—returning to the example in the article above—you might see an advertisement for a receptionist position that claims the job will require color vision, frequent lifting of 25 pounds, and occasional kneeling, crawling, and lifting of 75 pounds. Likely none of these are a requirement of the job and instead only serve to discourage those with different abilities—one of whom might be your best choice—from applying for the position. Most employers aren’t doing this on purpose. Frequently they’re using a list that has been copied and pasted from one job description to the next.

If your job advertisements include a physical requirements section, give it a hard look next time you post an ad. Remove anything that isn’t truly necessary to do the job, and consider rephrasing language to be more inclusive. For example, say, “ability to move from one place to another” rather than “ability to walk from one place to another.” See our 2-Minute HR on Job Descriptions for more useful tips on effective ads.

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