California employers should take employee requests for accommodations with extreme care. Whether the request is related to a mental or physical disability there are certain steps employers should take to ensure requests for accommodations are both considered and provided if they are determined to be reasonable.
Americans with Disabilities Act (ADA)
Title I of the ADA requires employers to provide reasonable accommodation to qualified applicants and employees with a disability. An accommodation may include a change to the work environment or to the way in which a job is usually performed. The employer may choose not provide the accommodation if they can demonstrate that doing so creates an undue hardship to the employer or poses a direct threat to the safety of the employee or others in the workplace. An employer may also determine that providing the requested accommodation creates an undue hardship when the cost of providing the requested accommodation has a grave financial impact on the organization or is unduly disruptive.
In 2008, the Americans with Disabilities Act Amendments Act (ADAAA) was signed into law and became effective on January 1, 2009. The ADAAA made a number of significant changes to the definition of “disability.” The changes in the definition of disability in the ADAAA apply to all titles of the ADA, including Title I (employment practices of private employers with 15 or more employees, state and local governments, employment agencies, labor unions, agents of the employer and joint management labor committees); Title II (programs and activities of state and local government entities); and Title III (private entities that are considered places of public accommodation).
Steps Employers Should Take When an Employee Requests Accommodation
Step 1: Engage in the “Interactive Process”
Assuming the ADA applies to the employer in question (e.g. 15 or more employees, etc.), the employer should engage in the “interactive process”. The employer should listen to the employee and healthcare provider, understand the specific requests and determine 1) which essential functions the employee cannot perform, 2) what “reasonable accommodations” the employee thinks would enable him or her to perform those functions, and 3) what, if any, restrictions their doctor may have provided. During this time, the employer should also determine whether the employee with a disability is “qualified”. The term “qualified” with respect to an individual with a disability means that the individual satisfies the requisite skill, experience, education and other job-related requirements of the employment position such individual holds or desires and, with or without reasonable accommodation, can perform the essential functions of such position.
Step 2: Assess if the Employee Has a Disability Under the ADA
Organizations should use the definition of a “disability” and a “qualified individual with a disability” under provisions of the ADA, along with information from the employee's health care provider, to help make this determination. The ADA defines a disability as one of the following: a) a physical or mental impairment that substantially limits a major life activity; b) a record of a physical or mental impairment that substantially limited a major life activity; or c) being regarded as having such an impairment. Further, according to the Equal Employment Opportunity Commission (EEOC), the ADA Amendments Act (ADAAA) includes impairments that would automatically be considered disabilities. They include deafness, blindness, intellectual disability, completely or partially missing limbs, mobility impairments that require the use of a wheelchair, autism, cancer, cerebral palsy, diabetes, epilepsy, HIV or AIDS, multiple sclerosis and muscular dystrophy, major depression, bipolar disorder, post-traumatic stress disorder, obsessive-compulsive disorder, and schizophrenia. The ADA provides other definitions as well, such as the definition of “major life activities” and “mitigating measures”.
Ultimately, the employer must decide whether the impairment substantially limits a person's ability to work or meet essential job-related requirements and if the disability needs to be accommodated. In addition to using the ADA and ADAA as guides, employers are advised to seek an experienced employment lawyer should they have questions or concerns during this phase of the process.
Step 3: Determine Specific Accommodations
Accommodations can range from job restructuring to transferring the employee to another position. In other cases, the accommodation may consist of making facilities more accessible, using an alternative work schedule, or using interpreters for people with hearing or visual impairments. While employers have to consider cost and hardship for other employees, the decision on the exact set of accommodations is driven by the limitations of the disability and the individual employee's ability to perform the essential job duties of the position. After engaging in the interactive process above, the employer, employee and healthcare provider should determine the accommodation that is cost-effective, meets the need of the employee, and does not create hardship on the employer/other employees. Accommodations that could result in an “undue hardship” include modifications that are “unduly extensive or disruptive, or those that would fundamentally alter the nature or operation of the job or business,” according to the EEOC. For example, small employers that require their employees to be able to perform a number of different jobs and tasks may not find it feasible or cost-effective to provide job restructuring as a “reasonable accommodation,” whereas in larger organizations, this may be a cost-effective alternative.
Step 4: Document and Notify All Parties
Specific accommodations should be agreed to by the all three parties—the employee, healthcare provider and the employer. Further, the final decision should be documented and all parties notified of the accommodations, especially the employee, who should be notified that his or her requested accommodation has been approved or denied, as well as the projected start date. Lastly, the accommodations should be reviewed periodically, especially if the employee's disability changes.
Questions about Disability and Discrimination
Should you have questions about ADA or disability discrimination don't hesitate to contact leading California employment lawyers at Kingsley & Kingsley. Call and speak to an experienced California lawyer toll-free at (888) 500-8469 or contact us via email.
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