Accommodating disabled employees Featured

7:44am EDT April 27, 2006
How typical is this? An employee asks his manager to be excused from certain duties that the employee finds uncomfortable. Or an employee who is constantly absent asks for extra sick leave. Often such requests will be summarily denied so as not to upset the organizational balance of the employer. But doing so may expose the employer to substantial liability.

The above scenarios could be considered requests for a reasonable accommodation under the Americans with Disabilities Act of 1990 (ADA). The law was enacted to achieve the noble goal of protecting disabled employees from discrimination. It often requires employers to modify or adjust the job duties or work areas of employees who qualify as disabled.

While compliance with the ADA may be a simple matter like the installation of a ramp for mobility-impaired employees or providing special telephones for hearing-impaired employees, often compliance is more complicated.

As an initial matter, determining who is “disabled” is not as obvious as it might seem. A person is “disabled” under the ADA if he or she possesses a physical or mental impairment that substantially limits one or more major life activities. This can include a variety of conditions beyond traditional notions of “disability” like hypertension, diabetes, HIV, carpal tunnel syndrome and depression. Also, alcoholism and drug addictions can, under certain circumstances, constitute a disability under the ADA.

Assuming that an employee is “disabled” under the ADA, a central tenet of the act is the requirement that the employer provide the disabled employee with a “reasonable accommodation” in order to perform his or her job. Once again, there is no bright line rule defining what constitutes a reasonable accommodation. Although the number of possible accommodations is infinite, common accommodations consist of the following:

  • Providing special equipment

  • Shifting marginal job duties to other employees

  • Permitting employees to work from home

  • Providing employees with additional leave time

Denying a reasonable accommodation can lead to an EEOC investigation or litigation with costs and potential damages that dwarf the cost of the requested accommodation. These expenses are often not covered by insurance.

Nevertheless, knowledge and prevention can reduce an employer’s risk of violating the ADA. Thus, employers should know the following.

  • The ADA only applies to employers with 15 or more employees.

  • An accommodation request does not need to reference the ADA and does not even have to be made by the employee. For instance, a physician’s note placing restrictions on the employee’s duties is a common type of request that is later found to be an accommodation request.

  • An employer is not required to change an employee’s core job function or lower productivity requirements for employees.

  • A reasonable accommodation need not be granted if it would impose an “undue hardship” upon the employer, determined by factors including the cost of the accommodation, the employer’s available resources, and the impact of the accommodation on the business.

  • Any medical information gained from an employee regarding his disability is highly confidential, and steps should be taken to protect against disclosure, such as storing this information apart from the general personnel files.

Ultimately, determining whether a disabled employee can be reasonably accommodated should be an interactive process. The employer should seek — and the employee should be prepared to provide — all information necessary to make a decision as to whether the employee is disabled and whether a reasonable accommodation exists. Through this process the employer may develop alternative accommodations and ultimately select the least expensive option.

JONATHAN GREEN is an associate at Gambrell & Stolz LLP. His practice areas are commercial litigation, business law and employment law. Reach him at (404) 221-6518 or jgreen@gambrell.com.