Dealing with Disabilities

Disabilities create significant risks of legal liability if not properly handled. The Americans with Disabilities Act or ADA went into effect in July 1992.  The law applies to employers with 15 or more employees. This employment-related discrimination parts of this federal statute are enforced by the Equal Employment Opportunity Commission.

The law defines employment broadly to include job application procedures, hiring, firing, advancements compensation, training, and other terms, conditions, and privileges of employment. It also applies to recruitment, advertising, tenure, layoff, leave, fringe benefits, and all other employment-related activities. Virtually every employment-related aspect of your business is covered.

The ADA protects "qualified individuals with disabilities" including applicants and employees. Covered persons have a mental or physical impairment that substantially limits one or more major life activities, e.g., working, have a record of impairment, or are perceived to have an impairment. The law also protects persons associated with or related to a disabled individual.  Someone with a permanent impairment like HIV, epilepsy, AIDS, loss of vision or hearing, or a missing limb is almost always covered because these conditions almost always substantially limit a major life activity.  In contrast, a sprain, broken arm, the flu, and properly managed or controlled diseases would probably not be covered. The “disabilities” part of the coverage definition is fairly simple; the “qualified individual” part is a little trickier.

A “qualified individual” is someone with a disability who otherwise meets the reasonable and normal requirements for the job (skill, experience, education, etc.) who can perform the essential functions of the job with or without a reasonable accommodation. This definition creates all kinds of legal issues.

The requirements you set to fill a position have to be reasonable and normal for the occupation and the industry. For example, you cannot have a requirement that an applicant weigh exactly 185 pounds or be exactly six feet tall. Equally important, you cannot use application screening methods that would unreasonably prevent a disabled person from applying for the job. This means that you might have to accommodate someone with a visual or hearing impairment who might by physically able to do the job.

An “essential function” is one that the job always requires and not one that is marginal or incidental to performing the job. Usually, if you use a written job description, it will be viewed as evidence of the essential functions of the job. If an individual is able to perform the essential functions of the job except for limitations caused by the disability, then the employer must assess whether or not the individual could perform the job with a reasonable accommodation.

A “reasonable accommodation” is any change in the job duties, work environment, or work procedures that would permit an individual with a disability to apply for the job or to perform the essential functions of the job. The accommodation must be reasonable, however, from the employer’s (and the court’s, if challenged) perspective. Note that you do not have to make an accommodation until you have actual knowledge of the disability. Usually, the employee makes you aware and suggests a possible accommodation.  You then have to decide if it is reasonable. You do not have to make an accommodation if it would impose an “undue hardship” on your business. This is defined to mean something requiring significant difficulty or expense.  As a general rule, larger businesses are expected to do and/or spend more than smaller businesses when making accommodations.

It is very important for contractors to train managers and supervisors to handle disabilities properly. The best course is to have them steer the individual to you so that you can manage the reasonable accommodation process. That starts by asking the worker about the nature of the disability so you can decide whether it substantially limits a major life activity and impairs the worker’s ability to perform essential job functions. Then, you need to ask the worker what accommodation he or she desires in order to be able to perform essential job functions. You then have to decide if that accommodation would impose an undue hardship on your business and if there is a different accommodation that would not.

As always, prudent contractors will document the dialogue with the worker in case the worker files a claim of disability discrimination. When in doubt, get competent help.