Smart Business spoke with Vincent Tersigni, a management attorney with the national law firm of Vorys, Sater, Seymour and Pease LLP, to learn more about how employers can comply with ADA requirements.
What do employers generally need to do to comply with the ADA?
Employers are required to provide reasonable accommodations for employees who have disabilities as defined under the ADA. Disabilities are mental or physical limitations that affect major life activities, such as walking, breathing or seeing. Employers must provide accommodations unless the employer would suffer an undue hardship, which is defined as a significant difficulty or expense.
For example, creating a new job for the employee or changing an entire manufacturing process would normally not be required under the law. However, the extent of the hardship of an accommodation may vary in the eyes of the courts, depending on the size of the employer.
Are employers required to grant accommodations to ADA-qualified employees that they may not make for regular employees?
The ADA was designed to ensure that employees with disabilities are not treated less favorably than non-disabled employees. Workers who are disabled still have to be able to safely perform their essential job duties. However, employers need to ensure that they are taking reasonable steps to enable these employees to do their jobs, such as eliminating physical barriers or restructuring non-essential duties.
How does an employee prove that a business has discriminated against him on the basis of his disability?
An employee must show that he is an individual with a disability as defined under the ADA and is otherwise qualified to perform his essential job requirements with or without a reasonable accommodation. He also must be able to show that his employer discharged him or committed some other adverse action because of his disability. The burden of proof is on the employee.
How do employers protect themselves from ADA litigation?
One way is to engage in an “interactive process” with the employee. In other words, meet with the employee, discuss his limitations, and explore options for getting the job done. Employers are also advised to consult during the accommodation process with qualified labor, legal and medical counsel to ensure that the appropriate steps are taken. Whenever possible, the consultants should be educated in ADA requirements. For instance, it is helpful if medical doctors consulted have training in occupational medicine.
It is also important for employers to understand the nuances of the law. For example, some conditions which one may assume to constitute disabilities may not be under the law. Recently, the U. S. Supreme Court found that an employee with carpal tunnel syndrome was not disabled and thus not protected by the ADA, because her condition was not severe enough to impact her daily life activities and did not otherwise preclude her from performing a broad range of jobs.
On the other hand, employees who may be “regarded as” disabled by their employer, even if they are not, are protected under the ADA. The classic example is an employee who is fired because the employer believed that he had AIDS even though, in reality, he didn’t have the disease. That employee would be protected under the ADA and potentially entitled to reinstatement and damages.
Do you find that employers have more difficulty accommodating certain conditions than others?
It is always a challenge trying to accommodate physical conditions that don’t have obvious symptoms or mental conditions which may cause employees to become abusive with co-workers or customers. Employees who won’t take their prescribed medication, or fail to use their own corrective devices such as hearing aids, also create challenging scenarios.
Conditions that require extended leaves of absence are also difficult for many employers to accommodate, but may be required even beyond the 12-week leave requirements of the federal Family and Medical Leave Act unless the employer can show an undue hardship.
How is ADA litigation evolving?
An interesting area to monitor is how far the courts will require employers to go in paying for workplace accommodations, as new medical and technological advances allow employees with more severe disabilities to perform a variety of jobs.
VINCENT J. TERSIGNI is a management attorney, OSBA Certified Specialist in Labor & Employment Law, with the national law firm of Vorys, Sater, Seymour and Pease LLP. He is based in Akron, Ohio. Reach him at email@example.com, (330)208-1000.