Part 1 presented an overview of the ADA, who is covered, employer responsibilities, as well as a definition of what constitutes essential functions. This article will review the issue of reasonable accommodation and also discuss ADA regulation with regard to medical disclosure during the hiring process.
Employer Responsibility Under Reasonable Accommodation
A reasonable accommodation may be defined as any change to a work environment that allows a person with a disability to participate in the hiring process, perform the essential tasks of the job, or to enjoy the same benefits and privileges of employment that are extended to those without a disability.
Reasonable Accommodation may include any of the following:
- Acquiring adaptive devices (wheelchair, walkers, TTY-enabled telephones, etc.);
- Job restructuring (e.g. modifying the job description or job-sharing);
- Flexible schedules;
- Reassignment to another position within the company (not demotion);
- Modifying training materials to include Braille editions;
- Providing readers or sign language interpreters;
- Installing ramps or guard rails;
- Any accommodation necessary to enable disabled employees to readily navigate the work environment.
It is a violation of the ADA for any employer to fail to make reasonable accommodation for disabled employees with either a mental or physical impairment, unless to do so would present your company with an “undue hardship” with regard to the continuing operation of the business.
When a Reasonable Accommodation Becomes Undue Hardship
An undue hardship means that the change would be prohibitively expensive, take a long time and be disruptive to the on-going operations of the business, or would fundamentally change the nature of the business. Factors that the EEOC takes into account when deciding undue hardship include the size of the employer, financial resources, essential nature of the business, and operational structure.
If a particular accommodation is determined to be an undue hardship, you should attempt to identify an alternate strategy that would remove any barriers to performance. For example, if cost is the main consideration, you can explore financial resources which will provide funding for reasonable accommodation expenses. Changes arising from reasonable accommodation may also be eligible for state or federal tax credits or deductions. You must also allow job candidates or employees to provide their own accommodation or contribute to the costs of any accommodation that represents an undue hardship for your firm.
In most cases, when a disabled job candidate or employee requests reasonable accommodation, the solution is readily apparent. The individual may even be able to suggest the appropriate accommodation based on past experience. When the accommodation isn’t readily apparent, you must consult with the candidate or employee to identify solutions that will enable the person to participate in the hiring process or perform the essential function(s) of their job.
Medical Issues and the ADA
The only area where the ADA applies to the application process is with regard to a candidate’s medical history. As per ADA regulations it is illegal for an employer to ask any questions regarding a candidate’s medical background during the hiring process. Specifically it is unlawful to:
- Ask a job applicant about the severity of any existing disability, or
- To require the candidate to take a medical exam before a job offer is made.
You are permitted to ask candidates about their ability to carry-out the essential job functions, as long as those questions do not contain any reference to their disability. You are also permitted to ask candidates how they plan to perform the essential functions with or without reasonable accommodation.
Once a job offer is made but prior to the first day of employment, you may ask the potential new employee to take a medical examination, only if all other employees who have the same or similar job have also been required to take a medical exam. You may make the job offer contingent upon the results of the exam. However, if the person is not eventually hired and the medical exam reveals the existence of a disability, you must be able to provide evidence that the decision was job-related and that no reasonable accommodation was possible for the individual to carry-out the essential functions of the role.
Once you have hired an employee, you cannot mandate a medical examination or question the employee about his or her disability unless you can provide evidence that these requirements are necessary for the operation of your business. Medical examinations that are part of voluntary wellness programs are permitted.
The results of all medical examinations must be kept confidential and stored in separate medical files which can be accessed only by authorized employees. You are permitted to provide any medical information required by State worker’s compensation regulations.
The EEOC Assists Employers to Remain Compliant
The EEOC provides no-cost technical assistance to employers to promote their compliance with the regulations of the ADA. The program assists employers to understand their responsibilities and assist those with disabilities to learn of their rights.
In January 1992, the EEOC published a Technical Assistance Manual, which provides information regarding the legal requirements with a directory of resources to assist employers in remaining compliant. For a full listing of online resources available through the EEOC, visit: http://eeoc.gov/laws/types/disability.cfm.
by Lisa Ann Burke