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Employer Responsibilities under the Americans with Disabilities Act (ADA) (Part 2 of 4)

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The U.S. Supreme Court has ruled that when determining an ADA disability, an employer must consider whether the person is substantially limited in performing a major life activity when using a mitigating measure.

A mitigating measure could be, for example, an employee’s medication to alleviate the effects of an impairment.

This means that if a person has little or no difficulty performing any major life activity because he/she uses a mitigating measure, then that person will not meet the Americans With Disabilities first definition of “disability.”

Following the Supreme Court’s ruling, whether a person has an ADA disability is determined by taking into account the positive and negative effects of mitigating measures used by the individual.

The ADA makes it unlawful to discriminate against a qualified individual with a disability in all employment practices such as:  recruitment, pay, hiring, firing, promotion, job assignments, training, leave, lay-off, benefits, all other employment related activities.  The ADA also outlaws discrimination against individuals with disabilities in state and local government services, public accommodations, transportation and telecommunications.  An employer may not retaliate against an applicant or employee for asserting his/her rights under the ADA.  The Act also makes it unlawful to discriminate against an applicant or employee, whether disabled or not, because of the individual’s family, business, social or other relationship or association with an individual with a disability.

What are Essential Functions?

Essential functions are basic job duties that an employee must be able to perform, with or without reasonable accommodation.  Carefully examine each job to determine which ones are essential to performance.  This is particularly important before taking an employment action such as recruiting, advertising, hiring, promoting or firing.

Factors to consider in determining if a function is essential include:

  • Does the position exist to perform that function?
  • How many other employees are available to perform the function (or among whom the performance of the function can be distributed)?
  • What is the degree of expertise or skill required to perform the function?

Your judgment as to which functions are essential and a written job description prepared before advertising or interviewing for a job will be considered by the Equal Employment Opportunity Commission (EEOC) as evidence of essential functions.  Other kinds of evidence the EEOC will consider include:

  • The actual work experience of present or past employees in the job,
  • The time spent performing a function,
  • The consequences of not requiring that an employee perform a function, and
  • The terms of a collective bargaining agreement.

An Employer is obligated to provide reasonable accommodations

Reasonable accommodation means any change or adjustment to a job or work environment that permits a qualified applicant or employee with a disability to participate in the job application process, to perform the essential functions of a job, or to enjoy benefits and privileges of employment equal to those enjoyed by employees without disabilities.

Examples may include:  acquiring or modifying equipment or devices, job restructuring, part-time or modified work schedules, reassignment to a vacant position, adjusting or modifying examinations, training materials or policies, providing readers and interpreters and making the workplace readily accessible to and usable by people with disabilities.

Reasonable accommodation must also be made so that an individual with a disability may participate in the application process and enjoy benefits and privileges equal to those of other employees.

An employer that fails to provide reasonable accommodation to a known physical or mental limitation of a qualified individual with a disability is violating the ADA, unless doing so would impose an undue hardship on the operation of your business.  Undue hardship means that an accommodation would be unduly costly, extensive, substantial or disruptive, or would fundamentally alter the nature or operation of the business.

How to identify a reasonable accommodation

Many times, when a qualified individual with a disability requests a reasonable accommodation, the appropriate accommodation is apparent.  When it is not apparent, the employer must make a reasonable effort to identify one.  The best way to do this is to consult informally with the applicant or employee about potential accommodations that would enable the individual to participate in the application process or perform the essential functions of the job.

Reasonable accommodations and undue hardship

A reasonable accommodation is not required if doing so would cause an undue hardship. Factors to consider are the cost of accommodation, the employer size, financial resources and the nature and structure of its operation.

If there is an undue hardship, try to identify another accommodation option.  If cost is the undue hardship, consider whether funding is available from an outside source, such as a vocational rehabilitation agency, and whether the cost can be offset by state or federal tax credits or deductions.  You must also give the applicant or employee with a disability the opportunity to provide the accommodation or pay for the portion of the accommodation that constitutes an undue hardship.

Other things to consider

You can ask an applicant questions about his or her ability to perform job-related functions as long as the questions are not phrased in terms of a disability.  You can also ask an applicant to describe, or to demonstrate how, the applicant will perform job-related functions with or without reasonable accommodation.

After a job offer is made and prior to employment  start, you may require an applicant to take a medical examination if others working in the job category must also take the examination.

Once you have hired an applicant, you cannot require a medical examination or ask an employee questions about disability unless you can show these requirements are job related and necessary for the conduct of your business.  Results of all medical examinations or information from inquiries about disability must be kept confidential, and maintained in a separate medical file.