The ADA Turns 30!

July 26, 2020, marks the 30th anniversary of the Americans with Disabilities Act (ADA). When first enacted, the Americans with Disabilities Act (ADA) was considered the most important employment legislation since the Civil Rights Act of 1964.The ADA prohibits discrimination in all areas of public life, including employment, education, transportation, and all public and private places that are open to the general public. In employment, the law helps people with disabilities access the same opportunities and benefits available to people without disabilities. Since its inception, many state and local laws have established similar protections, many of which provide even greater protection to individuals.

For those of us in HR, this law is one of the most complex laws to administer – not only because of the complexity of the law itself, but the patience and perseverance required to work with the individual to find the most appropriate solution to allow them to work effectively and safely.

In honor of the Americans with Disabilities Act (ADA) 30th Anniversary, the information below provides an overview of the ADA in employment, including reasonable accommodation, drug and alcohol abuse, undue hardship, and employer recommendations.

What Is the ADA?

The federal ADA applies to employers who employ 15 or more employees. The law is enforced by the Equal Employment Opportunity Commission (EEOC), which is a federal agency of the U.S. Government. The ADA prohibits discrimination by an employer against any “qualified individual with a known disability” regarding job applications, hiring, advancement, termination, compensation, training, or other terms, conditions, or privileges of employment.

Unlawful discrimination includes failing to make “reasonable accommodations” to the known physical or mental limitations of an otherwise qualified individual with a disability. Also prohibited is employer retaliation, intimidation, or coercion against any individual who seeks or asserts rights under this ADA.

The EEOC clearly states that the regulations are not intended to limit an employer’s ability to choose and maintain a qualified workforce. Employers can continue to use job-related criteria to select qualified individuals and hire employees who can perform the essential functions of the job.

Employers are required to consider and offer those job modifications or accommodations that will assist a qualified disabled individual in performing the essential functions of the job unless the employer establishes that to do so would cause undue hardship.

What Is a Reasonable Accommodation?

Employers must assess reasonable accommodations on a case-by-case basis appropriate to each individual situation. The regulations identify three categories of reasonable accommodations:

• Required to ensure equal opportunity in the application process
• To enable employees with disabilities to perform the essential functions of the job held or desired
• To enable employees with disabilities to enjoy equal benefits and privileges of employment as are enjoyed by other employees

Employers are only required to accommodate known disabilities. For example, if a person with a known disability is having difficulty performing a job task, the employer should inquire if they need a reasonable accommodation or modification of an existing accommodation. However, the employer may not compel a qualified person with a disability to accept any accommodation where one is neither requested nor needed.

Examples of various types of accommodations include, but are not limited to:

• Making existing facilities readily accessible
• Job restructuring
• Part-time or modified work
• Reassignment to a vacant position
• Acquisition or modification of equipment or devices
• Adjustments or modifications of examinations, learning materials or policies
• Providing readers or interpreters

Under the ADA, employers have an obligation to consider reasonable accommodation through what is known as an “interactive discussion” with the employee. Part of this “interactive discussion” may be obtaining information from the employee and the employee’s treating physician to determine if a reasonable accommodation can be provided for the employee to perform the essential functions of the job and/or comply with applicable workplace conduct policies. However, before or after this information is received, it is important for the employer and employee to engage in an interactive conversation. This generally means both employer and employee work together to review and make suggestions regarding what accommodation(s) may be best for both the employer and employee. It is important to document these discussions and what reasonable accommodations have been or will be considered.

The ADA requires employers to make “reasonable” modifications to assist employees with disabilities. Employers are permitted to ask and understand the nature, scope, and severity of the disability to ensure a request is reasonable.

The interactive discussion typically involves questions that can help facilitate a conversation concerning the most common requests:

• Work from home
• Schedule modification, reduction or shift change
• Flex/Intermittent schedule
• Equipment or workstation change

Additionally, the Job Accommodation Network (JAN) provides basic information on impairments and extensive accommodation ideas that may be helpful with the discussion process. In certain situations, medical leave may be an effective reasonable accommodation for an employee with a disability.

The ADA and Drug and Alcohol Abuse

Anyone who is currently using drugs illegally is not protected by the ADA and may be denied employment or terminated on the basis of such use. The ADA does not prevent employers from testing applicants or employees for current illegal drug use or making employment decisions based on verifiable results. A pre-employment or reasonable suspicion test to detect the illegal drug usage is not considered a medical examination under the ADA.

The definition of “disability” in this context may include an individual who:

• Has successfully completed a supervised drug rehabilitation program (or has otherwise been rehabilitated) and is no longer using drugs or has a history or record of drug addiction
• Is participating in a supervised rehabilitation program and is no longer engaging in the illegal use of drugs
• Is erroneously regarded as engaging in the illegal use of drugs

Nothing in the ADA prohibits an employer from complying with appropriate drug and alcohol
testing requirements under the federal Drug Free Workplace Act of 1988, or the U.S.
Department of Transportation for workers in safety-sensitive positions.

What is Undue Hardship?

The ADA states that an employer does not have to provide a reasonable accommodation of a disability that would cause an undue hardship to the employer. Undue hardship is a very high threshold to meet, and the employer bears the burden of proof. The employer cannot merely speculate but must be able to objectively show that a reasonable accommodation imposes an undue hardship based on the specific circumstances.

The ADA defines “undue hardship” as an action requiring “significant difficulty or expense,” when considered in light of the following factors:

1. The nature and cost of the accommodation needed;
2. The overall financial resources of the facility or facilities involved in the provision of the reasonable accommodation; the number of persons employed at such facility; the effect on expenses and resources, or the impact otherwise of such accommodation upon the operation of the facility;
3. The type of operation or operations of the covered entity, including the composition, structure, and functions of the workforce of such entity; the geographic separateness, administrative, or fiscal relationship of the facility or facilities in question to the covered entity.

Undue hardship cannot be based on customer preferences, or employees’ real or perceived fears or prejudices toward the individual’s disability. Undue hardship cannot be based on the fact that implementing a particular reasonable accommodation may have a negative effect on employee morale. However, an employer may successfully prove undue hardship if it can articulate how the reasonable accommodation would disrupt operations or disrupt other employees’ ability to work.

Undue hardship is not a “cost-benefit analysis.” The ADA makes clear that whether the cost of a reasonable accommodation imposes an undue hardship depends on the employer’s resources. The benefit should always be the same – a reasonable accommodation is only reasonable if it effectively enables the individual to perform the essential functions of the job.

It is important to carefully and clearly document the steps taken to accommodate the individual, including what discussions have taken place, recommendations from the employee’s healthcare provider, what accommodations have been offered (or declined), and what is working or not working. Regular check-ins with the employee are essential in determining whether the accommodation provided is still appropriate and effective in allowing the employee to perform their job’s essential functions.

Employer Recommendations

• Analyze each job to determine what job duties or functions are “essential” to that position’s proper performance. “Essential functions” are those that, if not performed, would change the purpose of the position or significantly alter the job.
• Analyze each job to determine the basic or mandatory requirements for that position, i.e., educational, skills, licenses, experience. These minimum qualifications must be job-related, consistent with business necessity, and applied equally to all applicants who apply for and employees who currently perform that position.
• Revise current job descriptions or develop new job descriptions for each position based on information obtained from the above two steps.
• Review the employment application and ensure there are no questions that inquire about an applicant’s medical, physical, or health status; medical history; medical treatment; or past workers’ compensation claims.
• Train interviewers so that they are knowledgeable as to proper and legal questions to ask in the job interview.
• Establish separate personnel files for employee medical information and maintain them in a manner that assures confidentiality. Disclosure of employee information should be limited to only those who have a “need to know.”
• Review all company policies, practices, and procedures to ensure that there do not exist barriers to any “qualified individual with disability” from enjoying all of the benefits, privileges, and opportunities of employment available to other workers. Specific areas of concern include, but are not limited to, training, job assignments, overtime, advancement, promotion, transfer, layoff, recall, vacations, holidays, leaves of absence, work schedules, access to company-sponsored events or recreational activities, lounges, lunchrooms, restrooms, etc.
• Conduct a tour of your workplace to identify areas that may bar access to an individual with a disability to your facility. Please take steps to remove such barriers where it can be accomplished without great expense or hardship on the business.
• Engage in the “interactive discussion” to determine reasonable accommodation.
• Once a reasonable accommodation is granted, ensure regular check-ins with the employee confirming the accommodation’s effectiveness and be open to amendments to an accommodation as needed to make the employee successful in job performance.

Eligible Archbright members are encouraged to contact the HR Hotline with any questions or to seek specific guidance relating to the ADA and reasonable accommodation. Eligible members may also access Archbright’s comprehensive KeyNotes and sample policies available on the Archbright Toolkit located on the members only part of the website.

Finally, don’t miss out! Become a part of the nationwide celebration of the ADA Anniversary at www.adaanniversary.org. #ADA30 #ThanksToTheADA