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Letter of the Law

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Employers and courts have had to interpret what is 'reasonable' on a case-by-case basis

by Tina J. Fowler

The Americans With Disabilities Act protects individuals with disabilities from workplace discrimination. Since the act's passage in 1991, the number of individuals seeking ADA protection has steadily increased and the types of impairments claimed as disabilities have dramatically expanded.

The ADA has had a significant and successful impact on the employability of disabled workers.

The Census Bureau reports that the number of disabled workers rose by more than 1.1 million between 1991 and 1994, and between 1986 and 1995, the proportion of companies providing workplace accommodations rose from 51 percent to 81 percent.

Under the ADA, an employer shall make reasonable accommodation to the known physical or mental limitations of an otherwise qualified handicapped employee unless the accommodation would impose an undue hardship on the employer. Consequently, not all individuals who have disabilities are protected by the ADA.

Rather, the ADA prohibits discrimination only against a qualified individual with a disability, and only when the discrimination is based on the individual's disability.

In addition, the ADA is not designed to provide preferential treatment. It is intended to ensure that disabled persons receive employment opportunities equal to those of non-disabled persons.

The ADA mandates that employers with 15 or more employees must provide "reasonable accommodations" that will allow qualified individuals to perform the essential functions of their jobs.

In an ADA discrimination case, after demonstrating that the employee is disabled and otherwise qualified, there are two issues remaining for the employer: whether the proposed accommodation is reasonable, and whether that accommodation would impose an undue hardship upon the employer.

The ADA does not specifically define the term "reasonable accommodation." As a result, employers and courts have been left to interpret these provisions on a case-by-case basis.

Because an employer's duty to provide a reasonable accommodation is not absolute, some additional factors can pertain to the degree of accommodation required.

First, because an employer can only approach an employee about a disability if it is job-related, the employer cannot ask the employee if he or she needs an accommodation, even if the employer is willing to accommodate.

Because many disabilities are hidden, employers must be sure to phrase an inquiry as it relates to the employee's performance.

Once the employer is aware of an employee's disability, the employer is obligated to offer a reasonable accommodation. At this point the "interactive process" of coming up with the accommodation begins, and it is this process which generally protects the employer from liability.

For example, courts generally look for signs of failure by the employer to participate in good faith. An employer is usually not liable for failure to provide an accommodation if the employer was not responsible for the breakdown in the interactive process.

Even if the employer is required to provide an accommodation, most are inexpensive.

More than half of accommodations cost nothing, and 80 percent of the remaining half cost less than $500. In addition, employers may not have to fulfill every request for an accommodation.

While an employer may need to restructure a current position, employers are not required to create new jobs or substantially alter their work forces. Also, an employer is not required to fire other employees to create a vacancy for a disabled worker, and an employer is not required to hire a second employee to perform the essential duties a disabled employee cannot perform.

If an accommodation is provided and other employees question the accommodation, an employer should respect the confidentiality of the disabled employee. If the employee wants his or her hidden disability to remain concealed, the employer must respect the employee's decision.

If the proposed accommodation is reasonable, the employer must determine whether the accommodation would impose an undue hardship. Undue hardship is an action requiring significant difficulty or expense.

By requiring that an employer accommodate a disabled employee unless that accommodation results in an unduly high cost, the ADA attempts to balance the cost of accommodation with the property rights of the employer and the other employees.

Generally, the employer will have the opportunity to prove that, upon careful consideration, the costs are excessive in relation either to the benefits of the accommodations or to the employer's financial survival or health.

An employer may avoid providing an accommodation if the employer can show that the accommodation will have a negative economic impact or disrupt operations, or by showing that the accommodation will have a negative impact on safety.

For example, an insulin-dependent, diabetic bus driver was not a qualified individual because his condition presented a substantial risk of injury to himself and others.

When accommodating individuals with disabilities under the ADA, each case has unique and very specific facts, making it difficult for employers to get easy answers on how to proceed.

Because accommodations generally vary with each individual case, employers should keep a careful watch upon their employment practices and make a conscious effort to review with their attorneys all employment policies and procedures, including the employer's duty to provide reasonable accommodations, to ensure that employers are not violating any of the ADA's provisions.

(Tina G. Fowler is a practicing attorney with the Springfield law firm of Miller & Sanford. Information and opinions expressed in the "Letter of the Law" column should not be construed as legal advice. For counseling on specific legal situations, please consult an attorney.)

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