HR Solutions: Businesses must offer reasonable accommodations

Lynne Haggerman is president/owner of Haggerman & Associates, a firm providing outplacement, retained search and management consulting/training on human resource issues.

Editor's note: This is the second part of an article that was in the Nov. 17 edition.

Companies are mandated by the Americans with Disabilities Act of 1990, Title I, to reasonably accommodate any known disabilities of qualified applicants or workers. Examples of conditions that would likely be deemed disabilities include blindness, deafness, paralysis, alcoholism, HIV infection, cancer, mental illness, learning disabilities and mental retardation. A few issues not considered disabilities might include the flu, sprains, kleptomania, pyromania, broken limbs, compulsive gambling and use of illegal drugs.

Reasonable accommodation includes redesigning the physical work environment to create accessible facilities and work areas and/or modifying equipment, examinations, training programs and work schedules. Other options consist of offering flexible, unpaid leave or providing qualified readers and interpreters. An existing employee with a disability may be reassigned to a vacant or lower-level position closest in pay, status and other factors. In this situation, the business is permitted to pay the lower rate of pay of the matching job. The ADA expects enterprises to handle each individual on a case-by-case basis.

Reasonable accommodation would not consist of lowering quality and quantity standards; providing glasses, hearing aids or items needed away from work; offering additional paid leave not available to other staff; eliminating or reallocating an essential function of the job; or finding a position for a job candidate who is not qualified for the original role he sought. The applicant or current associate must be otherwise qualified, or able to perform the essential functions of the position, except for the disability.

The test for effectiveness is if the accommodation will provide the opportunity for the laborer to achieve the same level of performance as a person without a disability. For example, an individual in a wheelchair might need his office doorway widened and workspace lowered. A magnification device on a computer screen could possibly accommodate someone with a serious vision problem. A person without arms might need his keyboard and telephone placed in the floor if he uses his feet as hands. An interpreter could help a deaf worker acclimate into a new position. A corporation may not force an employee to accept an accommodation. However, the job candidate or existing team member would then be considered unqualified for the job.

An accommodation is not required if it would impose an undue hardship on the enterprise. In that case, the establishment should ascertain a different accommodation or offer to let the associate pay a portion of the undue hardship cost. Undue hardship is determined by the business size, financial resources available for accommodation, difficulty or expense of making an accommodation, and the nature and structure of the company operation.

Corporate representatives may make a conditional job offer based upon the results of a medical examination by a physician. However, the exam must be job related, a business necessity and required for everyone entering the same job category.

Medical examinations of existing staff must also be job related and consistent with business necessity. The exams may be conducted as a requirement for other federal laws, upon detection of job performance or safety problems, to determine current fitness to perform a particular position or as a voluntary component of employee health programs. Tests for illegal use of drugs are not considered medical examinations under the ADA.

The ADA does not override health and safety requirements established under other federal laws, but does supercede state or local laws that conflict with ADA mandates. The establishment must assess if the situation poses a direct threat, defined by the nature and severity of the risk; severity, imminence or likelihood of potential harm; and whether or not the risk may be eliminated or reduced by reasonable accommodation. A firm does not have to hire or promote a person who is a direct threat to the health and safety of themself or others, with a reasonable accommodation unavailable to reduce the problem below the direct threat level. A company also must show that a reasonable accommodation would impose an undue hardship.

Proper management of the reasonable accommodation and medical examination requirements of the ADA will minimize corporate lawsuits and ensure the effective employment of those with disabilities.