Taking the Mystery out of the Americans With Disabilities Act

We often hear from Idaho businesses that are unsure what they are required to do for job seekers or employees with disabilities. Army - prosthetic leg b&w

What many don’t know is any Idaho business with five or more employees must provide the same employment opportunities to qualified applicants and employees with disabilities that are available to those without disabilities, and they must provide any reasonable accommodations necessary for successful employment, except where such accommodation would cause undue hardship.

What’s the Definition of a Disability?

  • A disability is a physical or mental impairment that substantially limits one or more major life activities or when someone is regarded as having or has a record (or past history) of such impairment.
  • A physical impairment is any physiological disorder or condition, cosmetic disfigurement or anatomical loss affecting one or more body systems.
  • A mental impairment includes mental or psychological disorder, such as an intellectual disability, organic brain syndrome, emotional or mental illness or a specific learning disability.
  • Major life activities include and are not limited to, caring for oneself, performing manual tasks, seeing, hearing, eating, sleeping, walking and others. Major life activities also include operation of major bodily functions, such as special sense organs and skin, digestive, respiratory, circulatory functions. For a non-exhaustive list see http://www.eeoc.gov/laws/statutes/adaaa.cfm

Discrimination occurs when an employer takes an action prohibited by the Americans with Disabilities Act (ADAAA) because of an actual or perceived impairment that is neither temporary nor minor.

Hiring and Reasonable Accommodation

Employers may tell applicants what is involved in the hiring process – an oral interview, timed skill, written test or program use demonstration – and can ask applicants whether they need a reasonable accommodation for any hiring activities. If the employer knows the applicant has a disability, either because it’s evident or because the applicant told the employer, they can ask if they need a reasonable accommodation.

Employers cannot ask questions about an individual’s health, medical history, or whether the job candidate has ever filed a worker’s compensation claim, nor can they request a medical examination until after a job offer is made. Once an offer is made, employers can ask if an applicant needs any accommodation related to any aspect of the job or access to benefits — provided that the employer asks all employees or job applicants the same question.

What is a Reasonable Accommodation?

A reasonable accommodation is any change in the application process, work environment or way a task is performed that enables someone to achieve equal employment or do his or her job.

Employees must let employers know – orally or in writing – when an adjustment or change is necessary and the reason for the request. Employees need not mention Americans with Disabilities Act or the phrase “reasonable accommodation.”

Responding to Requests for Reasonable Accommodation

Employers must respond to requests for reasonable accommodation as quickly as possible and can do so by memo or e-mail as a way of confirming the request. If engaging with the employee is necessary for clarifying needs and identifying the proper accommodation they should follow-up promptly.

If the disability or the need for accommodation is not evident, employers can ask for reasonable documentation about the disability and the employee’s functional limitations. Employers can also ask questions that help when making decisions about the proper accommodation, but should not ask broad questions about other health issues. All medical information should be kept in locked and separate confidential files and not disclosed to co-workers.

Employers can choose from several reasonable accommodation options as long as the accommodation is effective in removing the workplace barrier identified by the employee. If there are alternative accommodations and one is less expensive, the employer can choose the less costly one as long as it is as effective as the one requested by the employee.

Undue hardship for providing a reasonable accommodation can be shown if making the accommodation is difficult or expensive, unduly extensive or disruptive, or alters the nature or operation of the business.  ‘Reasonableness” is based on the business type and size, available financial resources and cost. Considerations include number of employed, effect on business expenses or resources and impact of the accommodation on the business. The burden of proof for proving undue hardship lies with the employer.

Employers do NOT have to eliminate primary job duties, provide personal use items and or excuse a violation of a uniformly applied conduct rule that is job-related and consistent with business necessity. Employers are also not obligated to employ someone whose disability makes them a threat to their own health or safety nor are they expected to employ any workers, with disability or not, who cannot perform their jobs.

Types of Reasonable Accommodation

  • Restructuring a Job: Shifting responsibilities for minor job tasks an employee is not able to do due to a disability; requiring an employee to perform an alternate task in its place; or altering when and where a task is performed.
  • Providing Leave: Unless undue hardship can be shown, unpaid leave may be provided as reasonable accommodation, but employers are not required to provide more paid leave than currently available to other employees. If an employee requests leave, employers may explore alternate accommodations, allowing the person to keep working and eliminating the need for leave.
  • Adjusted work schedules: Different arrival /departure times, periodic breaks, changing tasks, allowing accrued paid leave or additional unpaid leave.
  • Reassignment: If an employee can no longer perform their duties in their current position, an employer must reassign the employee to a vacant position equal in pay and status unless undue hardship can be shown.  Employees must be qualified for the alternate position and able to perform the primary job tasks, with or without reasonable accommodation.

Other examples of reasonable accommodation include making a worksite accessible to and functional for employees with disabilities; modifications to tools or equipment; or adaptive aids or devices.

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