The Americans with Disabilities Act can be a nightmare for a business. The law is complex and covers everything from workplace accommodations for those with disabilities to drug and alcohol abuse.
An employee's understanding of the law and what it requires may be different from that of the employer. Further complicating the matter is the fact that courts have applied different standards to different sized businesses. What's considered a reasonable accommodation for one business might not be reasonable for another. The myriad complexities can lead to disputes and even a formal complaint. So what can be done if a complaint is filed?
"Once a complaint or lawsuit is filed, depending on the remedy they are seeking, there is not a lot you can do to fix the situation," says K. Tia Burke, an associate with the Philadelphia-based law firm of Christie, Pabarue, Mortensen and Young. "Sometimes ADA cases are brought by people who are seeking some relief rather than money-maybe they were denied a job because of a disability, or maybe they were fired because the employer thought they couldn't do the job and they want it back. But rarely is that all. Typically they want money as well." The law also allows for a successful plaintiff to collect attorneys fees.
Each business has its own way of dealing with an employee problem or employee relations.
"There are some smaller organizations where everyone knows each other, and if someone experiences a disability, they will bend over backwards to do more than the ADA requires to help that person perform their job," says Burke. "On the other hand, for many businesses, economics are a very significant factor."
A smaller business is operating on a tighter budget, and each person is there for a purpose. The business isn't in a position to have someone who isn't capable of performing everything that needs to be done.
The federal ADA applies to businesses with 15 or more employees, but many states have added ADA legislation that encompasses businesses with as few as four employees. The most unique aspect of the ADA is the "reasonable accommodation" aspect.
"A business has to provide reasonable accommodation to perform the essentials of the job," says Burke. "For a small business, what may or may not be reasonable will be different than what is reasonable for IBM."
Reasonable accommodation can range from access issues such as how one gets in the building, to job restructuring or elimination of duties. Reasonable embraces the scope of the business operations.
"If what's being requested is that an employer provide a specialized fork lift to enable a person with one arm to operate it-that will be an unreasonable accommodation for a small business," notes Burke. "For IBM, which might have thousands of forklifts, it might not be."
Burke says disputes frequently revolve around time off to obtain physical care. Under the ADA, providing for a person to take time to receive treatment can be a reasonable accommodation. Also, a person may no longer be able to perform the job they were hired to do, but may be able to perform another job within the company.
"If that other job is open, that works well," says Burke. "But the courts agree that it is not reasonable to bump a person out of a job to accommodate someone else."
What not to do.
One thing you shouldn't do is ignore requests for job accommodations, even if they are not issued in the context of the ADA.
If someone says, "Since my back surgery, I've had a difficult time performing my job," warning bells should go off.
"Even if the employee doesn't mention the ADA, the employer is responsible for addressing the situation," says Burke.
When a complaint is filed, the Equal Employment Opportunity Commission will find out from the employee what his or her limitations are, and look at what the business could reasonably accommodate.
"The employee needs information from the employer to find out what is possible," says Burke. "An employee is not always in the best position to know what accommodations are available. Opening a dialogue is the best advice."
The ADA requires that a disabled person be able to perform the main functions of the job. The business does not have to change the job, but has to consider whether there is a reasonable accommodation to help the person perform those functions.
If the employee works in a warehouse setting moving products from one point to another, there may be some assistive devices that would allow him to perform the job functions. What the equipment is and how much it costs goes into the determination of what's reasonable. A $40,000 forklift may not be reasonable, but a $50 handcart would be.
As a practical matter, the EEOC has such a backlog of cases that it rarely is able to resolve a dispute.
"An employee and employer are much better off working out something between themselves and not going to the EEOC," advises Burke.
Employers are not required to be proactive when a disability arises. It is up to the employee to come to the employer and ask for assistance. The employer does not need to go to the employee with possible accommodations unless they are requested.
Another issue to consider is discrimination or harassment, not from the employer, but from other employees. Burke says the number of claims in this area are rising.
"As with any discrimination, have a strong policy against it and any form of harassment," notes Burke.
Regardless of the type of complaint, keep the doors of communication open when a request for accommodation is made.
"Trying to find a way how the request can be achieved is probably the most diligent course an employer can take," says Burke.