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
