by admin | Aug 18, 2022 | Workplace
The Americans with Disabilities Act of 1990 makes it illegal for companies to discriminate in employment against a qualified individual with a disability, according to the U.S. Equal Opportunity Commission (EEOC). This legislation, which has been amended in the years since it was originally signed into law, provides guidelines to employers for accommodating and being fair to the differently abled.
There are limitations to protection.
“An individual with a disability must also be qualified to perform the essential functions of the job with or without reasonable accommodation, in order to be protected by the ADA,” according to the EEOC. Specifically, they must meet the requirements set by the employer for education, employment experience, skills, licenses, and other job-related standards. In addition, they must also perform their job obligations with or without accommodations.
The job description matters.
In the eyes of the law, the job description matters because it will be considered proof of the requirements and duties the employee – regardless of disability – must perform. Therefore, HR leaders should carefully craft job descriptions.
This is actually a good fit with a general trend of greater transparency and a hiring process that is more likely to help employers find a good match in job candidates to avoid attrition. People should know what their days will be like, how they can succeed on the job, and what tasks they will have to accomplish.
Accommodation is not as simple as it sounds.
Reasonable accommodation refers to making a change or modification to make it possible for a qualified applicant or employee, who is disabled, to apply for the job, do the job, and experience treatment equal to others. In the legal sense, this could mean providing devices, making the workplace accommodating with structures like doorways wide enough for wheelchairs, and providing interpreters.
There is a caveat to providing reasonable accommodation. Some might see it as a loophole:
“It is a violation of the ADA to fail to provide reasonable accommodation to the known physical or mental limitations of a qualified individual with a disability, unless to do so would impose an undue hardship on the operation of your business,” according to EEOC. “Undue hardship means that the accommodation would require significant difficulty or expense.”
While employers are not legally required to make all the changes, many are trying to equip their workplace so it is more welcoming to their diverse group of employees. Some are making any content on the internet accessible. Other examples might include removing lighting that would disturb those with photosensitive conditions.
Be aware of the limits to your questioning.
HR professionals should know that they cannot ask job candidates if they are disabled or about the severity of their disability. No one can require a medical exam before making a job offer. However, HR leaders and hiring managers can ask about the person’s qualifications and abilities to do the tasks of the job.
The ADA works into DEI strategies.
The ADA provides a kind of roadmap for employers interested in hiring and accommodating disabled employees. The workforce should reflect the outside community. Certainly, disabled Americans are in the real world, and they can contribute and excel. Ignoring their potential simply because of a disability is a missed opportunity.
One in four Americans has a disability, according to the Centers for Disease Control (CDC). Yet, only about 19% of workers in the United States are disabled. More HR leaders, however, are recognizing that they should never define a person by his or her disability. They should instead recognize the merits of their candidacy and consider them for jobs.
In fact, diversity in recruitment and hiring is a solution to the labor shortage. The CDC also reports that more than 45% of disabled adults have functional disabilities. Now, many companies can hire disabled people to work remotely, which would not require making changes to an office or workspace for accommodation.
Ultimately, by considering the requirements of the ADA and recognizing what their company can do to accommodate those with disabilities, HR professionals can open a new pipeline of talent. In addition, they can extend their reach and continue to diversify their workforce.
By Francesca Di Meglio
Originally posted on HR Exchange Network
by admin | Nov 22, 2021 | Human Resources
The Americans with Disabilities Act (ADA) applies to employers with 15 or more employees. Despite its broad coverage, there’s a lot of confusion about what the law requires and what its terms entail. A big reason for this confusion is the language of the law itself; the ADA speaks of nebulous concepts like undue hardship and reasonable accommodation. Words like undue and reasonable are by their nature open to some interpretation, which is not exactly a comfort to employers.
Fortunately, employers can feel confident in their application of the law by reviewing and understanding its most important concepts. In this article, we’re going to define and analyze the terms disability, undue hardship, reasonable accommodation, and interactive process. These are the big four terms that serve as the foundation of your responsibilities as an employer under the ADA.
Disability
Let’s start with the term disability. Under the ADA, a person with a disability is someone who:
- Has a physical or mental impairment that substantially limits one or more major life activities;
- Has a record of such an impairment; or
- Is regarded as having such an impairment.
Major life activities include caring for oneself, performing manual tasks, seeing, hearing, eating, sleeping, walking, standing, lifting, bending, speaking, breathing, learning, reading, concentrating, thinking, communicating, and working. A major life activity also includes the operation of a major bodily function, such as digestive, circulatory, and reproductive functions.
Although determining whether an impairment meets the definition of disability is an individualized assessment, some conditions “virtually always qualify.” For example, according to the EEOC, deafness substantially limits hearing; HIV substantially limits immune function; and bipolar disorder substantially limits brain function. Other conditions may vary from case to case in whether they substantially limit a major life activity.
It’s important to note that the definition of disability is broad. After the ADA was originally passed, the courts interpreted the definition very narrowly, and Congress responded by amending the ADA in 2008 so that more disabilities are covered. If an employee asks for an accommodation because of a physical or mental condition, it often won’t be hard for them to show that the condition substantially limits a major life activity.
Reasonable Accommodation
Employers often encounter the ADA when an applicant or employee asks for a reasonable accommodation. A reasonable accommodation is a change to the workplace or the job application process so that people with disabilities can perform the essential functions of their job, access employment benefits, or be considered for a job they’re qualified for. The intent of reasonable accommodations is to remove workplace barriers for people with disabilities—barriers that don’t prevent people without disabilities from performing the work or applying for the job. But don’t focus too much on the word reasonable; in the context of disability accommodations, reasonable means feasible or plausible.
Common types of accommodations include modifying work schedules, altering the way job duties are done, re-assigning a non-essential job duty (like asking the receptionist to stack the monthly 100-lb paper delivery in the storage room), granting additional breaks, providing accessible parking, and providing materials in alternative formats (e.g., Braille, large print). Another type of accommodation is a temporary leave of absence. Although a bit counterintuitive (because the employee isn’t working while on leave), the theory with a leave as an accommodation is that the time off will enable to employee to perform the essential functions of their job when they return.
Not every requested accommodation is required, however. For one, employers don’t have to remove an essential job function (e.g., the receptionist can still be expected to answer the phone). Employers also aren’t required to provide items for personal use, like wheelchairs or hearing aids. And, as we turn to next, an accommodation doesn’t have to be provided if it causes an undue hardship.
Undue Hardship
Under the ADA, an employer is not required to provide reasonable accommodations to employees or applicants with disabilities if doing so creates an undue hardship on the organization. The basic definition of undue hardship is an action that creates a significant difficulty or expense. Generally, this is a high standard to meet.
The cost of an accommodation could be an undue hardship on the employer, but so could an accommodation’s duration or disruption. An accommodation that would fundamentally alter the nature or operation of the business would be an undue hardship even if the cost was negligible. But if cost alone is the basis for claiming undue hardship, employers should remember that the standard is a significant expense.
Undue hardship is determined on a case-by-case basis, considering the following factors:
- The nature and net cost of the accommodation, including the availability of tax credits and deductions, as well as outside funding;
- The overall financial resources of the facility providing the accommodation, the number of employees at the facility, and the effect of the accommodation on expenses and resources;
- The employer’s overall financial resources, size, number of employees, and the number, type, and location of its facilities;
- The type of operation of the employer, including the composition, structure, and functions of the workforce, and the geographic separateness and administrative or fiscal relationship of the facility providing the accommodation; and
- The impact of the accommodation on the operation of the facility, including the impact on the ability of other employees to perform their duties and the impact on the facility’s ability to conduct business.
An employer can’t claim undue hardship based on employee or customer fears or prejudices toward the disability. An undue hardship also can’t be based on the possibility that an accommodation could reduce employee morale.
Interactive Process
The interactive process is an ongoing conversation between the employer and employee to explore potential accommodations so that the employee can perform their essential job functions or access the benefits or privileges of their job.
Basically, the interactive process starts with brainstorming. The employee—and in some cases their medical provider—is often the best source for accommodation options. However, the employer should do some research too, for example, by searching for the disability or functional limitation on the Job Accommodation Network website.
Next, the employer chooses an accommodation from all the options. Employers should give consideration to which accommodation the employee prefers, but, at bottom, whatever accommodation they choose must be effective. If it’s not clear initially, the employer can implement an accommodation for a trial period to determine whether it’s effective. If that accommodation doesn’t work, employers should then try a different accommodation. In addition, circumstances may change over time, so the best practice is to keep an open dialogue with the employee to see if further adjustments are needed throughout the employment relationship.
By Megan LeMire
Originally posted on Mineral
by admin | Jun 2, 2020 | ACA, COVID-19, Human Resources
The coronavirus crisis has forced human resources teams to juggle more challenges than ever before, from employee benefits and sick leave to new teleworking policies. On top of this, the drastic change in the American workplace has spawned new laws and protocols, while raising questions about how these new regulations affect standing legislation like the Americans with Disabilities Act (ADA). In order to remain fully compliant, HR departments need to keep abreast of the latest developments, especially regarding the Families First Coronavirus Response Act (FFCRA), which officially went into effect April 2. Here’s some guidance on how to remain ADA-compliant while your company implements new policies in response to COVID-19.
Calling In Sick & Recruitment
According to the EEOC, the reasonable accommodation and nondiscrimination regulations mandated by the ADA, as well as the Rehabilitation Act, are still in effect; however, they “do not interfere with or prevent employers from following the guidelines and suggestions made by the CDC or state/local public health authorities about steps employers should take regarding COVID-19.” So as a general rule of thumb, any guidelines or protocols made by the CDC are considered independent from the ADA, and can be acted on accordingly while remaining compliant. Still, there are a few scenarios where the coronavirus takes precedent.
For example, if an employee covered by the ADA calls in sick, employers may request information about the illness, in order to protect the health and wellbeing of the workforce, as reported by the EEOC. If the employee exhibits symptoms of COVID-19, the ADA allows the employer to require the employee to stay home.
The EEOC also offers guidance if an employer is hiring during the crisis. After making a conditional job offer, employers can screen potential hires for coronavirus symptoms—so long as this practice is applied to all employees that are entering the same or similar position.
Employees With COVID-19
If an employee contracts coronavirus, their symptoms would likely not qualify as a disability according to ADA guidelines. Temporary impairments with no substantial long-term impact, like broken limbs, concussions, pneumonia, and influenza, are typically not considered disabilities under the law.
However, according to Littler Mendelson P.C., a legal firm specializing in labor and employment law, an employee with severe COVID-19 symptoms, or one whose symptoms worsen or complicate a pre existing health issue or concern, could be entitled to ADA accommodation or protection. A panel consisting of Littler counsel, shareholders, and associates report that “the ADA requires employers to assess whether a particular employee is “disabled” under the ADA on an individualized basis, taking into account the employee’s particular reaction to the illness, their symptoms and any other relevant considerations.”
It’s also important to refer to your state’s specific disability laws, and pay particular attention to how your state defines disability. If those laws are more lax than the ADA’s, it’s possible an employee with COVID-19 could qualify for disability.
By Bill Olson
Originally posted on ubabenefits.com
by admin | Feb 25, 2020 | Human Resources, Workplace
In 2020, many people with disabilities use the emotional and physical support provided by a service animal. This means that the workplace has seen an increase of these service animals over the last decade and therefore the workforce needs to be educated on this changing environment. Let’s take a look at what constitutes a service animal and the accommodation of such in the workplace.
Americans with Disabilities Act
The Americans with Disabilities Act (ADA) provides a framework of protections for people with disabilities in the workplace. Title I of the ADA prohibits employers from discriminating against potential candidates and employees with disabilities. In fact, Title I outlines that the workplace must make “reasonable accommodations” for this specific group of people. “Examples of reasonable accommodations include making existing facilities accessible; job restructuring; part-time or modified work schedules; acquiring or modifying equipment; changing tests, training materials, or policies; and providing qualified readers or interpreters.”
“Service Animals” Definition
According to the Department of Justice’s revised Title III of the ADA, a service animal is now defined under Title III as “any dog that is individually trained to do work or perform tasks for the benefit of an individual with a disability, including a physical, sensory, psychiatric, intellectual or other mental disability. Other species of animals, whether wild or domestic, trained or untrained, are not service animals for the purposes of this definition. The work or tasks performed by a service animal must be directly related to the individual’s disability.” Currently, a “service animal” can also include another species of helper: a trained miniature horse. Of course, there are limitations to what a workplace can accommodate in terms of miniature horses and the employer would make those limitations known if approached with the need of a person with a horse as their assistant.
Accommodation Requests & Documentation
When an accommodation is requested on behalf of a disabled candidate or employee, the employer must consider the request. However, the employer is simply required to assess and suggest options for the reasonable accommodation for the employee. Some examples of job accommodations may include installing a ramp or modifying the layout of a workstation. Technology accommodations may be providing sign language interpreters at events or providing screen reader software. The ADA does not specifically address or require the inclusion of service animals in the workplace. So, if the employer has a no-animals-in-the-workplace policy and is asked to allow a service animal for an employee, the employer must consider modifying this policy but is not required to modify it. A “reasonable accommodation” for an employee does not always equal their “preferred accommodation.”
As for documentation for service animals in the workplace, the ADA does allow for an employer to request medical documentation for the need for the disabled person to need this accommodation. It also allows for the employer to request proof from the employee that the service animal is appropriately trained to assist them and that it is trained to not disrupt the workplace under normal conditions. It is worth noting that an “emotional support animal” is NOT classified as a “service animal” by the ADA unless it can perform a specific task, such as sense when an anxiety attack is about to happen in the case of someone with PTSD and the animal helps avoid or lesson that attack.
Conclusion
Every workplace should have written policies on reasonable accommodations for disabled employees. Of course, there is no way to include all possibilities and so the policies can include the language of consideration of requests on a case-by-case basis. The key to this policy is that those who are in charge of assessing accommodation requests must be willing to truly consider the accommodation of service animals.
Resources
Need help? Check out these resources on workplace accommodations for those with disabilities:
Office of Disability Employment Policy
FAQ about Service Animals and the ADA
Employer Assistance and Resource Network on Disability Inclusion
Job Accommodation Network
by admin | Aug 31, 2018 | Compliance, Employee Benefits, Human Resources, Workplace
The Supreme Court of the United States (SCOTUS) heard several cases with employment implications during their 2018 session, including the following four cases we covered in detail. (Click the case names to read the full articles.)
- Encino Motorcars, LLC v. Navarro: Encino shifted the burden of proof in Fair Labor Standards Act (FLSA) overtime exemption cases to the plaintiff, meaning that if employees cannot prove they were misclassified, they will not be entitled to overtime pay.
- Epic Systems Corp. v. Lewis: Epic held that employers may enforce class action waivers in arbitration agreements rather than being obligated to allow employees to unite in a class action suit.
- Masterpiece Cakeshop, Ltd. V. Colorado Civil Rights Commission: Masterpiece argued the key civil rights issues of discrimination versus freedom of religion. Although both sides declared a win, the court simply decided that the law is the law and employers cannot deny equal access to goods and services but also religion remains a highly-protected civil right.
- Janus v. American Federation of State, County, and Municipal Employees: Janus ruled that public sector employees are not required to pay fees to a union they choose not to join, even if they receive the benefits of the union’s negotiations.
Notable cases that SCOTUS declined to hear in 2018 touched on tip pooling, Americans with Disabilities (ADA) leave, age discrimination, sexual discrimination, and compensation during rest breaks.
The overall trend in the 2018 rulings was a tendency to favor employers. This conservative lean of the court was also reflected in its ruling in Trump v. Hawaii, where the court held the president lawfully exercised the broad discretion granted to him under federal law to suspend the entry of people from certain countries into the United States.
What’s Coming Up?
With Brett Kavanaugh’s potential confirmation as the new SCOTUS justice due to Justice Kennedy’s retirement, SCOTUS will likely continue on the conservative trend. The EEOC is speculating that cases potentially on the docket for the Supreme Court next season may be related to age discrimination, equal pay, sexual orientation, and gender identity, including possible appeals of these circuit court decisions:
- Rizo v. Yovino: The Ninth Circuit Court of Appeals held that under the federal Equal Pay Act an employer cannot justify a wage differential between male and female employees by relying on prior salary.
- EEOC v. R.G. & G.R. Harris Funeral Homes: The Sixth Circuit Court of Appeals ruled that employers may not discriminate against employees because of failure to conform to sex stereotypes, transgender, or transitioning status.
- Kleber v. CareFusion Corporation: The Seventh Circuit Court of Appeals found that an outside job applicant can assert a disparate impact claim under the federal Age Discrimination in Employment Act. (Disparate impact refers to employment practices that appear to be nondiscriminatory but adversely affect one group of protected class individuals more than others.)
- Zarda v. Altitude Express, Inc.: The Second Circuit Court of Appeals ruled that Title VII protects employees from discrimination based on sexual orientation.
Other cases being considered include the applicability of the Age Discrimination in Employment Act (ADEA) to small public employers, whether the Federal Arbitration Act applies to independent contractors, and whether payment to an employee for time lost from work is compensation subject to employment taxes.
Originally posted on thinkhr.com
