Managing Disabilities in the Workplace: ADA Compliance

Why do employers have an obligation to accommodate disabilities?  The purpose of the Americans with Disabilities Act (ADA) is to provide disabled workers with a level playing field within the workplace.  Qualified individuals with disabilities should have the same employment opportunities as everyone else. They should be able to secure and retain employment, promoted and advanced within the workplace, not be discriminated against because of their disability and reasonably accommodated.   The ADA was influenced by the Rehabilitation Act and modeled after it.  It is a federal anti-discrimination law that apply to all employers, both public and private with 15 or more employees.  It protects qualified individuals with disabilities from discrimination and it requires "reasonable accommodation” if needed in order to perform “essential functions” of a job. The ADA of 1990 was amended on September 25, 2008 and took effect on January 1, 2009. It is is enforced by the U.S. Equal Employment Opportunity Commission. 

Because people with disabilities should not be discriminated against in any aspect of employment, including, but not limited to, candidate search and hiring, reasonable accommodation is required during the application and interview process. The first step is to ask all job candidates if they require reasonable accommodation when scheduling an interview. This is okay as long as more probing questions about the disability itself are not asked. Further, it is important for employers to know their organizational policies on reasonable accommodation requests, including the time-frame for providing one.  Second, all requests for reasonable accommodation should be documented. Some reasonable accommodations during the application process can include, but is not limited to, making the application available in alternate formats, such as large print, Braille, or computer disk, in an oral or pre-recorded format, or as an electronic document that can be completed using a computer or if an application or forms are paper-based, allow candidates to take them home, if requested.  Further, when interviewing candidates, employers must ensure all questions are legal and appropriate; and questions that focus on possible disabilities should be avoided.

 In addition, interviewers may not ask questions about a person’s perceived or actual disability. Questions should only investigate a person’s ability to perform the “essential functions” of the job. In addition to not questioning people about their present disabilities, employers cannot ask about previous workers’ compensation claims, history of hospitalization or past substance abuse. More, employers may not ask how often a person will need to be absent for medical care. However, the company’s attendance policy can be stated and the applicant may be asked if they can meet them. 

Employers can comply with the Americans with Disabilities Act by implementing effective processes, methods and procedures for accommodation. First, employers should engage employees in an interactive process. Here, “employers become aware of an employee’s need for accommodation and then work with that person to find mutually acceptable accommodation” (Walsh, p. 305). This process involves the employer identifying and examining the job, its purpose and essential functions. Next, the employer and the disabled individual work together to determine the precise job-related limitations that pose barriers to the individual’s job performance. And then, the two parties identify, discuss and determine which specific accommodations will remove the barriers and difficulties, ultimately allowing the individual to perform the essential functions of the job. Second, “employers should access the effectiveness of each accommodation and the preference of the individual to be accommodated and then determine whether the various accommodations would pose an undue hardship upon the employer” (http://www.mediate.com/articles/bullivant.cfm).

“Recently, in Barnett v. U.S. Air, Inc., 228 F.3d 1105 (9th Cir. 2000), the Ninth Circuit Court of Appeals (whose decisions govern the Western states) addressed the interactive process in depth, noting that “the interactive process is a mandatory rather than a permissive obligation on the part of employers under the ADA and . . . this obligation is triggered by an employee or an employee’s representative giving notice of the employee’s disability and the desire for an accommodation” (http://www.mediate.com/articles/bullivant.cfm). The interactive process is one of the best ways for an employer to avoid liability in a disability discrimination lawsuit. And showing a good faith effort to reasonably accommodate is what matters most.

While employers want to maintain productive employees within the workplace, the overall objective of reasonable accommodation is compliance with the Americans with Disability Act. Lawsuits can bankrupt an organization. Besides being the right thing to do, “the ADA is a federal mandate that carries heavy fines and penalties for noncompliance” (http://www.adaconsultants.com/WhyComply.aspx). However, employers can demonstrate proactive steps when they create and implement human resources reasonable accommodation practices, policies and procedures within their organizations. Good faith efforts that demonstrate their willingness to accommodate qualified individuals who are disabled will save them penalties and unnecessary court costs. Recruiting and hiring disabled workers can improve their bottom line because of increased worker productivity and performance. Further, employer’s efforts will present them in a favorable light and their risks for liability will be reduced. Once organizations take these steps to provide reasonable accommodations they will show they have a handle on the ADA requirements and they will meet EEOC guidelines.  The outcome will be federal law compliance, and nondiscriminatory hiring, recruiting, interviewing, promotion and advancement, discharge and any other terms, conditions and privileges of employment practices within their organization. 

When implementing your recruitment, application and interviewing strategies here are some suggestions: 

DO NOT

• Inquire about an individual’s disability or perceived to be disability during any recruiting, application and / or interview process.

• Document or track any information related to an applicant’s disability during your recruiting, application and / or interview process. 

• Ask if any disability claims have been filed or intend on being filed during your recruitment, application and / or interview process.

• Ask any questions that are not specifically related to the job or job performance during your recruitment, application and / or interview process.

• Ask questions to elicit information that could be used to discriminate against persons with a disability.

• Ask or elicit questions concerning an individual’s medical history. Refrain from seeking any medical data from all applicants, whether disabled or not during your recruitment, application and / or interviewing process. This includes, medications taken, worker’s compensation claims filed previous or current medical history or condition.

• Discriminate against qualified disabled persons who can perform the essential parts of the job, with or without reasonable accommodation.

YOU MAY

• Ask are “you able to perform the essential duties of this job, with or without an accommodation?”  

• Request a satisfactory medical examination, if it applies to job requirements as a condition of employment. (Every person hired to do the same kind of work must be subjected to the same medical inquiries or exams).

• Seek medical information from job candidates ONLY after job candidates have been conditionally offered employment, based on their other qualifications.

YOU MAY NOT

• Discriminate against qualified disabled persons who can perform the essential parts of the job, with or without reasonable accommodation.

There are serious legal consequences for violating ADA in addition to the harmful affect to an employer’s reputation.  The purpose of the ADA as amended is to provide qualified individuals with disabilities the same employment opportunities available to others without disabilities.

References:

 Disability Access Consultants (2012). Why Comply with the ADA? Retrieved November, 13, 2012 from http://www.adaconsultants.com/WhyComply.aspx

U.S. Equal Employment Opportunity Commission (1990). Titles I and V of the Americans with Disabilities Act of 1990 (ADA). Retrieved from http://www.eeoc.gov/laws/statutes/ada.cfm

Society for Human Resource Management (2012). Americans with Disabilities Act of 1990 (ADA). Retrieved from http://www.shrm.org/legalissues/federalresources/federalstatutesregulationsandguidanc/pages/americanswithdisabilitiesactof1990(ada).aspx

Goren, W. (2012).  Concept of Undue Hardship and Reasonable Accommodation in the Employment Context. Retrieved from http://www.mediate.com/articles/gorenw2.cfm

Walsh, D. (2010). Employment Law For Human Resource Practice. Mason, OH: South-Western Cengage Learning