American Disability Act (ADA) Oct 5th, 2003

Some facts Re: American Disability Act (ADA) please post on the website under Legal updates...

Reasonable Accommodation Under The ADA

The fundamental nature of the ADA is to remove barriers or obstacles that prevent otherwise qualified individual that have a disability from performing the job.

These barriers and obstacles in the workplace come in many forms, including physical obstacles (such as inaccessible facilities or equipment) and procedures or rules (such as rules concerning when work is performed, when breaks are taken, or how essential or marginal functions are performed). “Reasonable accommodations” remove workplace barriers for individuals with disabilities.

The ADA regulations state:

“It is unlawful for a covered entity not to make reasonable accommodation to the known physical or mental limitations of an otherwise qualified applicant or employee with a disability, unless such covered entity can demonstrate that the accommodation would impose an undue hardship on the operation of its business.”

The duty to provide reasonable accommodation is fundamental to the ADA because of the nature of discrimination faced by individuals with disabilities.

Many individuals with disabilities can apply for and perform jobs without any reasonable accommodations. However, there are workplace barriers that keep others from performing jobs that they could do with some form of accommodation.

Reasonable accommodations must be provided to qualified employees regardless of whether they work part-time, full-time, or are considered "probationary”.

The key component to this requirement is that an accommodation be “reasonable” to implement. The problem with this requirement is that it is very nebulous by nature as the term “reasonable” may mean different things to different people.

Undue Hardship

The determination of whether an accommodation is reasonable is based upon whether implementation of the accommodation will present an undue hardship on the employer.

Undue hardship means there will be significant difficulty or expense incurred implementing the accommodation and focuses on the resources and circumstances of the particular employer in relationship to the cost or difficulty of providing a specific accommodation.

Undue hardship is not based just on financial difficulty; it refers to reasonable accommodations that are unduly extensive, substantial, or disruptive, or those that would fundamentally alter the nature or operation of the business.

Each situation must be assessed on a case-by-case basis to determine whether a particular reasonable accommodation would cause undue hardship. What may be an undue hardship to one employer may be reasonable for another employer.

Factors to be considered when determining whether undue hardships exist are:

• The nature of the accommodation
  
• The net cost
  
• Financial resources of the employer
  
• The number of persons employed
  
• The effect on expenses and resources
  
• The size of the business
  
• Type and location of its facilities
  
• Type of operation
  
• The overall impact of the accommodation
  
• The overall impact on the ability of other employees to perform their duties
  
• The overall impact on the facility's ability to conduct business
  

Undue Hardship Questions:

When reviewing an accommodation to determine the impact on the workplace, there are several fundamental questions that should be asked.

Is there evidence that providing a specific reasonable accommodation would entail significant difficulty or expense? Being able to show the actual cost of implementing an accommodation is a good starting point.

If the accommodation will be a modified schedule or leave, is undue hardship based on the impact on the ability of other employees to do their jobs? Look at the impact on the way the employees meet the requirements of the organization. The fact that employee’s are not happy with the change is not an argument for undue hardship – it is the impact on the way employees must do their jobs.

If the accommodation is a leave of absence, is undue hardship based on the amount of leave requested? Will the leave be of such a duration as to have an impact on the company’s ability to provide its goods or services. Or will the organization be able to absorb the absence of the individual for the time requested?

Will the claim of undue hardship be based on a conflict between the reasonable accommodation and the provisions of a collective bargaining agreement? If the collective bargaining agreement will be violated by the accommodation, the accommodation needs may be negotiated between the employer and the union.

Is undue hardship based on the fact that providing the reasonable accommodation requires changes to property owned by an entity other than the Company? Changes to leased property may be addressed in the lease agreement. Before any changes are done, the tenant should consult with the landlord to ensure there will be no additional liabilities.

If the Company claims that a particular reasonable accommodation would result in undue hardship, is there another reasonable accommodation the Company could have provided that would not have resulted in undue hardship? All options should be considered. Each situation must be evaluated on a case-by-case basis.

Reasonable Accommodation Categories

An accommodation is any change in the work environment or in the way things are done that enables a qualified individual with a disability to enjoy equal employment opportunities.

There are three categories of reasonable accommodations:

1.Modifications or adjustments to a job application process that enable a qualified applicant with a disability to be considered for the position such qualified applicant desires; or

2.Modifications or adjustments to the work environment, or to the manner or circumstances under which the position held or desired is customarily performed, that enable a qualified individual with a disability to perform the essential functions of that position; or

3.Modifications or adjustments that enable a covered entity's employee with a disability to enjoy equal benefits and privileges of employment as are enjoyed by its other similarly situated employees without disabilities.

Types Of Reasonable Accommodations

Reasonable accommodations may include any of the following:

• Making existing facilities accessible
  
• Job restructuring
  
• Part-time or modified work schedules
  
• Acquiring or modifying equipment
  
• Changing tests, training materials, or policies
  
• Providing qualified readers or interpreters
  
• Reassignment to a vacant position

The employer is not required to:

• Create a position for a qualified individual with a disability
  
• Offer the “best” accommodation available
  
• Lower performance standards or waive disciplinary policies
  
• Eliminate or transfer essential job functions
  

Requesting Reasonable Accommodations

The duty of the employer is to make reasonable accommodation to the known disability of a qualified individual.

Some accommodation needs will be clearly evident such as when an employee is wheelchair bound and the need for an access ramp is apparent.

If the need is obvious, the duty exists. However, if the need for a reasonable accommodation is not obvious, then the burden shifts to the individual to request a reasonable accommodation.

When an individual decides to request accommodation, the individual or his or her representative must let the employer know that he or she needs an adjustment or change at work for a reason related to a medical condition.

To request accommodation, an individual may use "plain English" and need not mention the ADA or use the phrase "reasonable accommodation”.

Example 1: An employee tells his supervisor that he is having trouble getting to work at the scheduled starting time because of medical treatments. This is a request for a reasonable accommodation. This request does not mean that the individual has an ADA disability, but it has shifted the burden to the employer to begin an interactive process to determine whether there is an accommodation that will be reasonable.

Example 2: An employee tells his supervisor that he would like a new chair because his present one is uncomfortable. This is not a request for a reasonable accommodation because the need is not linked to a medical condition.

Documentation

The employer is entitled to know that the individual has a covered disability for which he or she needs a reasonable accommodation.

The employer may ask an individual for documentation when the individual requests reasonable accommodation when the disability and/or the need for accommodation is not obvious.

The employer may require only the documentation that is needed to establish that a person has an ADA disability, and that the disability necessitates a reasonable accommodation.

An employer does not have a right to an employee’s entire medical history. The employer’s request must relate to the requested accommodation and must be narrow in scope so as to include only medical information that applies directly to the claimed disability or need for a reasonable accommodation.

Documentation Not Required

Employers are not required to request that the employee submit to a physical or mental examination.

Employers may simply discuss with the person the nature of his/her disability and functional limitations and act upon the information obtained from the employee.

If an individual's disability or need for reasonable accommodation is not obvious, and he refuses to provide the reasonable documentation requested by the employer, then he is not entitled to a reasonable accommodation.

However, if the employer fails to initiate or participate in an informal dialogue or interaction with the employee after receiving a request for reasonable accommodation, the employer could be liable for failure to provide a reasonable accommodation.

Documentation Not Allowed

The employer is not allowed to ask for documentation when either of two conditions are met:

1.Both the disability and the need for reasonable accommodation are obvious, or
2.The individual has already provided the employer with sufficient information to substantiate that he or she has an ADA disability and needs the reasonable accommodation requested.

Example: Mike brings a note from his physician explaining that he has diabetes and that, as a result, he must test his blood sugar several times a day to ensure that his insulin level is safe. The doctor’s note explains that Mike could be subject to a hyperglycemic reaction that includes extreme thirst, heavy breathing, drowsiness, and flushed skin, and eventually could result in unconsciousness. Depending on the results of Mike’s blood test, he may have to take insulin. The doctor’s note requests that Mike be allowed three or four 10-minute breaks each day to test his blood, and if necessary, to take insulin. This constitutes sufficient documentation that Mike has an ADA disability because it describes a substantially limiting impairment and the reasonable accommodation needed as a result. The employer cannot ask for additional documentation.

Reasonable Accommodation Choices

One of the questions most employers (and employees) have is what happens when there are two or more reasonable accommodations available?

EEOC guidance makes it clear that if more than one accommodation is effective, the preference of the individual with a disability should be given primary consideration.

However, the employer has the ultimate discretion to choose between accommodations as long as the accommodation is effective in removing the workplace barrier.

An employer is required to make reasonable accommodations to the known disability of a qualified individual, however, the employer may choose among various reasonable accommodations as long as the chosen accommodation is effective.

For example, if there are two possible reasonable accommodations, and one costs more or is more of a burden than the other, the employer may choose the less expensive or less burdensome accommodation as long as it is effective. The employer may also choose the one that is easier to provide.

In either situation, the employer does not have to show that it is an undue hardship to provide the more expensive or more difficult accommodation in order to provide the less expensive or less burdensome accommodation.

Physical Impairment

In order to be protected under the ADA an individual must have a physical or mental impairment that substantially limits one or more major life activities. This means there must be an actual impairment.

A physical impairment means any physiological disorder, or condition, cosmetic disfigurement, or anatomical loss affecting one or more of the following body systems. For example, this may include disorders to:

• Neurological systems
  
• Musculoskeletal systems
  
• Special sense organs
  
• Respiratory systems
  
• Speech organs
  
• Cardiovascular systems
  
• Reproductive systems
  
• Digestive systems
  
• Genito-urinary systems
  
• Hemic and lymphatic systems
  
• Skin and endocrine systems

This list is not exhaustive. Each situation must be examined on a case-by-case basis.

Example: Dyslexia is a disability because it impairs an individual’s ability to read. However, a person who cannot read because he or she dropped out of school does not have a disability; the impairment is due to a lack of education.

Many individuals may have physical impairments that are considered disabilities. However, there will be no impact upon their activities of daily living such as working and caring for oneself.

This does not diminish the fact that the individual has a disability; it means the employer, in an ADA context, may have no need to do anything different that what would be done for any employee.

The point is, under the ADA, each individual’s needs must be reviewed on a case-by-case basis.

Temporary Impairments

Not everything that restricts what a person is able to do will be considered a disability under the ADA. For example, financial hardships or other “economic disadvantages” are not are not impairments under the ADA.

Temporary impairments are also not considered impairments under the ADA. However, duration of the impairment is not the key factor; the key is whether the impairment is substantially limiting. Therefore, we look at the three factors: the extent, duration, and impact of the impairment.

Example: Broken limbs, sprains, concussions, appendicitis, common colds, or influenza generally would not be disabilities. A broken leg that heals normally within a few months, for example, would not be a disability under the ADA.

Conversely, an individual with a broken leg that does not heal properly may be substantially limited in the major life activity of walking. In this case, it is possible such impairment would be considered a disability under the ADA.

Additionally, individuals may have disabilities, as defined by the ADA that will improve over time.

Example: A person who has been blinded or temporarily paralyzed but is expected to fully recovery, is an individual with a disability, despite the prognosis for a full recovery at some indeterminable time in the future

Mental Impairment

Individuals with mental health or psychiatric disabilities may be protected under the ADA.

The ADA protects qualified individuals with a mental impairment that substantially limits one or more major life activity, or who have a record of such impairment, or is regarded as having such impairment.

Under the ADA "mental impairment" includes "any mental or psychological disorder”, such as:

• Mental retardation
  
• Organic brain syndrome
  
• Specific learning disabilities
  
• Emotional or mental illness
  

Examples of "emotional or mental illness[es]" include:

• Major depression
  
• Bipolar disorder
  
• Anxiety disorders (which include panic disorder, obsessive compulsive disorder, and post-traumatic
• stress disorder)
  
• Schizophrenia
  
• Personality disorders
  

The current edition of the American Psychiatric Association's Diagnostic and Statistical Manual of Mental Disorders is relevant for identifying these disorders.

Example 1: Joy is a telephone representative that suffers from a diagnosed panic disorder. Due to her condition, she is unable to perform an essential function of her job because of frustrated and irate medical customers. This would be a disability under the ADA.

Example 2: Peter finds that it is very stressful to work for a particular supervisor. He has not been diagnosed with any particular disorder. Mere stress and the inability to work with others will not be considered a disability under the ADA.

A Record Of An Impairment

The legislative history of the ADA emphasizes that the ADA is intended to prevent discrimination against individuals who have been classified or labeled, correctly or incorrectly, as having a disability.

It also makes clear that the coverage of the Act extends to persons who have recovered, in whole or in part, from a disability but are subjected to discrimination because of their history of a substantially limiting impairment.

The intent is to:

• Protect persons who have a history of, or have been classified or misclassified as having, a physical or mental impairment
  
• Protect persons who have recovered in whole or in part and are not now substantially limited. This includes persons who have been incorrectly classified as having a disability.
  

The record at issue must be a record of an impairment that substantially limited a major life activity.

Example: A job applicant formerly was a patient at a state institution. When very young she was misdiagnosed as being psychopathic and this misdiagnosis was never removed from her records. If this information is used as part of the hiring process, such use will be a violation of the ADA, even though the individual is not currently disabled.

Regarded As Having Such An Impairment

The ADA also covers persons whose impairments are substantially limiting only as the result of the attitudes of others toward the impairment and persons who have no impairments but nonetheless are treated as having substantially limiting impairments

According to Senate Report at 23 and House Education and Labor Report at 53:

“This part of the definition protects people who are “perceived” as having disabilities from employment decisions based on stereotypes, fears, or misconceptions about disability. It applies to decisions based on unsubstantiated concerns about productivity, safety, insurance, liability, attendance, costs of accommodation, accessibility, workers’ compensation costs or acceptance by co-workers and customers.”

This part of the ADA definition of disability covers persons who have impairments that do not substantially limit major life activities but are treated by covered entities as constituting substantially limiting impairments.

Example: An employee has controlled high blood pressure which does not substantially limit his work activities. If an employer reassigns the individual to a less strenuous job because of unsubstantiated fear that the person would suffer a heart attack if he continues in the present job, the employer has “regarded” this person as disabled.

Substantially Limiting Disabilities

A critical element to determining whether an individual has a disability as defined by the ADA is whether the existing impairment is substantially limiting.

An impairment is only a disability under the ADA if it substantially limits one or more major life activities.

The term “substantially limits” means either:

• The individual is unable to perform a major life activity that the average person in the general
• population can perform.
  
• The individual is significantly restricted as to the condition, manner or duration under which an
• individual can perform a particular major life activity as compared to the condition, manner or
• duration under which the average person in the general population can perform the same major activity.
  

The factors to be considered are:

• The nature and severity of the impairment
  
• The duration or expected duration of the impairment
  
• The expected permanent or long-term impact of the impairment
  

Example: Although a sprained wrist may keep an individual from brushing his teeth in a normal fashion, this is not substantially limiting in his ability to care for himself.

Substantially Limiting: Examples

A “substantially limiting” disability may be looked at as a continuum from something that is very unlikely to be a disability, to something that may be a disability to something that is definitely a disability.

Example 1: A person with a sprained ankle may be limited in her ability to walk for a period of one to several days. Although this is a major inconvenience, it is not considered substantially limiting under the ADA because she is expected to fully recover from this injury.

Example 2: A person who has a broken ankle that does not heal correctly that limits his ability to walk for more than several blocks for the next year or so may have a disability. The extent of such an injury is often decided by medical experts.

Example 3: A person who has lost a foot would be substantially limited for the rest of her life in the ability to walk, as compared to the general population.

Most laypeople would agree that the person in example 1 does not have a physical impairment that substantially limits a major life activity. However, example 2 leaves some room for disagreement and such issues are often decided by medical experts.

In example 3, most laypeople would agree that she has a physical impairment that substantially limits her ability to walk (walking is a major life activity – we will discuss major life activities later in this section).

This is one of the most frustrating aspects of the ADA, determining when an injury or illness rises to the level of substantially limiting. Unfortunately, there is not much guidance in the regulations because each case must be analyzed on a case-by-case basis.

Administrative Tip:
As noted, some injury or illness will be obvious disabilities, or at least the employer will accept them as such. In those cases where it is unclear, the employer should take a conservative approach and treat the condition as a disability and seek further expert medical or legal advice as necessary.

Substantially Limited In Working

An individual may also be impaired generally in that they are unable to work a broad range of jobs due to a physical or mental impairment.

In general, a person will not be considered to be substantially limited in working if:

• He or she is substantially limited in performing only a particular job for one employer, or,
  
• Is unable to perform a very specialized job in a particular field
  

An individual need not be totally unable to work in order to be considered substantially limited in working.

A person must be significantly restricted in the ability to perform either a class of jobs or a broad range of jobs in various classes.

Example: An individual may suffer from carpal tunnel syndrome that prevents him from performing a particular machining job. However, the individual is capable of working with other machines that do not require the same kind of writ motion. This individual would not be considered substantially limited in the major life activity of working.

It is only necessary to indicate an approximate number of jobs from which an individual would be excluded (such as “few,” “many,” “most”), compared to an average person with similar training, skills and abilities.

Note: If a person is substantially limited in seeing, hearing, or walking, there is no need to consider whether the person is also substantially limited in working as these are major life activities. The individual is already substantially limited in a major life activity so no further analysis is necessary

Major Life Activities Defined by ADA

A qualified individual with a disability must be substantially limited in a major life activity by that disability, in order to be protected by the ADA.

Major life activities are:

"…those basic activities that the average person in the general population can perform with little or no difficulty."

Major life activities include functions such as:

• Caring for oneself
  
• Walking
  
• Performing manual tasks
  
• Seeing
  
• Hearing
  
• Speaking
  
• Breathing
  
• Learning
  
• Working
  

Mental and emotional processes such as thinking, concentrating, and interacting with others are other examples of major life activities.

In 1998, the Supreme Court held that reproduction is a major life activity. In Bragdon v. Abbott et al. No. 97-156 (Argued March 30, 1998, Decided June 25, 1998), the Court held that an individual that is infected with HIV is substantially limited in the major life activity of reproduction from the moment of infection.

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