THE ADA ﷓ YOUR RESPONSIBILITIES AS AN EMPLOYER

THE ADA ‑ YOUR RESPONSIBILITIES AS AN EMPLOYER

A. What is Reasonable Accommodation?

Employers must make reasonable accommodation to the physical or mental limitations of an otherwise qualified individual with a disability as defined by the ADA, unless the employer can demonstrate that the accommodation would impose an undue hardship.[1] The employer's obligation to make reasonable accommodation is limited by the employer's knowledge of the existence and extent of the employee's disability. Some examples of reasonable accommodation are job restructuring (modifying a job so that a person with a disability can perform the essential functions of his/her job), modifying equipment, modifying the employee's work schedule, or allowing the employee to take leave.

Along with the employee, the employer bears responsibility for determining what accommodation is necessary.[2] Both the employer and the employee must participate in good faith in this interactive process. The employer is not required to offer the accommodation that is preferred by the employee, so long as the accommodation that is offered by the employer is reasonable. The employer is not required to create a new position or to offer transfer to a position where there is no current or impending vacancy in order to accommodate the employee. Also, the employer does not have to retain or accommodate potentially violent employees.[3]

Steps Toward Identifying a Reasonable Accommodation[4]

(1) Determine the purpose and essential functions of the particular;

(2) Consult with the employee and ascertain his/her precise job‑related limitations imposed by her disability and how those limitations may be overcome with a reasonable accommodation;

(3) While consulting with the employee, identify potential accommodations and assess the effectiveness each would have in enabling the employee to perform the essential functions of the position;

(4) Consider the employee's preference and select and implement the accommodation that is most appropriate for both the employee and his/her employer.

If there is a claim against the employer for failing to reasonably accommodate a disabled employee, the employee bears the burden of showing that reasonable accommodation was available.[5] The employer bears the burden of showing that a proposed accommodation would cause undue hardship, excusing the employer from adopting that accommodation. If the employer presents evidence that the employee cannot perform the job, even with a reasonable accommodation, the employee must produce evidence "concerning his/her individual capabilities and suggestions for possible accommodations to rebut the employer's evidence." [6]

B. When is Accommodation an Undue Hardship?

The ADA defines undue hardship as an action which would require significant difficulty or expense to the employer when considered in light of the following factors[7]:

(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;

(3) the number of persons employed at the facility;

(4) the effect on expenses and resources, or the impact otherwise of such accommodation upon the operation of the facilities;

(5) the overall financial resources of the covered entity;

(6) the overall size of the business of a covered entity with respect to the number of its employees;

(7) the number, type, and location of its facilities;

(8) the type of operation or operations of the covered entity;

(9) the composition, structure, and functions of the work force of such entity;

(10) the geographic separateness; and

(11) the administrative or fiscal relationship of the facility or facilities to the covered entity.

The EEOC defines undue hardship as any action that is unduly costly, extensive, or substantial to the particular employer or would fundamentally alter the nature of operation of the business.[8]

If a particular accommodation causes an undue hardship, but there are other accommodations available which do not create an undue hardship, then an employer will be required to provide the alternative remedy.

C. Alcoholism, Drug Use and Emotional Disorders: Hot Topics under ADA

The ADA has identified alcoholism as a disability. Denial of employment solely on the basis of prior alcoholism is prohibited by the ADA.[9] However, if an employee exhibits destructive behavior or violates company policy due to symptoms of his/her alcoholism, he/she may be, terminated for that behavior.[10] Courts seem to recognize a distinction between terminating an employee for a disability and terminating an employee for misconduct. Factors considered in making termination decisions include risk to supervisors and other employees, reputation of the employer, violation of company policy, and violation of criminal laws.

Some courts have ruled that termination based solely on behavior causally related to an employee's alcoholism, such as excessive absenteeism, constitutes removing the employee on the basis of his/her disability, reasoning that the manifestations of the disability cannot be distinguished from the disability itself.[11] The ADA itself, however, does not appear to support this approach.

If an employer does not know about an employee's disability, then the employer cannot be held accountable for failing to accommodate that employee. In the case of alcoholic employees, most courts find that if an employee is terminated due to alcohol‑related misconduct, that behavior alone is not sufficient to impute knowledge of the employee's disability to the employer.[12]

Employers may implement policies that prohibit the consumption of alcohol at the workplace, and may require employees not to be under the influence of alcohol at the workplace.[13] The employer may have the same employment and job performance standards for alcoholic employees as for other employees.

D. EEOC Guidance on Return to Work and ADA

The EEOC is responsible for enforcing Title I of the ADA. In addition, the EEOC provides guidance on interpreting the ADA and implementing ADA policy in the workplace. The EEOC issues handbooks, compliance manuals, and other guidance documents. The EEOC also hosts technical assistance and training programs throughout the country for employers and employees in the private sector, state and local government, and the federal government.

Web sites:

http://www.eeoc.gov

http://www.hrzone.com/topics/ada/ada.html

http://www.dinf.orq/ada/ada_ta1_eeoc.html

http://www.adaptenv.org/infodocs/infodoc.htm

http://www.thompson.com/tpg/person/able/able.html