Copyright ©1997-2002 by Ethan A. Winning
"A reasonable accommodation is any modification or adjustment to a job or the work environment that will enable a qualified applicant or employee with a disability to participate in the application process or to perform essential job functions. Reasonable accommodation also includes adjustments to assure that a qualified individual with a disability has rights and privileges in employment equal to those of employees without disabilities." USDOJ (Department of Justice)
One might assume that definition would be sufficient to answer most of the questions of employers or employees with "complaints," but as with most convoluted Congressional laws, it just isn't so. When the Congress enacted the Americans with Disabilities Act (ADA) on July 26, 1992, it was with the stated (assumption) statistic that there were 40 million Americans with disabilities, a statistic is even more suspect than most DOL stats.
The intent was simply to give the disabled person equal employment opportunity, making it illegal to discriminate against an applicant or employee because of his or her disability. In order to be covered by ADA one must have an impairment which substantially limits one or more major life activities, i.e., seeing, hearing, speaking, walking, learning, reading, breathing, lifting, sitting, standing, taking care of oneself, and working. These "impairments" include both physical and mental disabilities, and employers must wonder why they would have to modify a job to give someone with a mental impairment equal opportunity in employment.
Well, the truth is that they don't. In order to be a qualified individual with a disability, the person must meet the "legitimate skill, experience, education, or other requirements of an employment position that s/he holds or seeks, and who can perform the essential functions of the position with or without reasonable accommodation."
So what's the big deal? For almost five years I've been saying that ADA really doesn't protect the disabled job applicant, and I'll stand by that. Yes, the disabled applicant can certainly make a claim that a particular facility is inaccessible to him because there are physical barriers to his entering the workplace (i.e., no ramps for wheelchairs, curbs which impede walking, etc.). But the "complications" and complexities of ADA actually set in much more so after the individual is in the job and then becomes "disabled" or whose disability comes to light after employment.
Some of the questions we have received from employers over the past two years will give a better idea as to just how simple or complex these situations are.
Q. Our staff accountant broke his leg skiing, and now he wants us to pay for a parking garage closer to the office. He broke his leg on his own time doing his own thing, shouldn't he pay for his own parking? That's $130 a month!
A. Well, I understand your point and position, but pay up...at least for the time that he's "disabled." 'Course, you should call an attorney to be sure, but that might cost you a month's parking fees.
Q. We do not allow food or drink at an employee's work station under any circumstances. One of our employees has brought a note from his doctor that he becomes dehydrated due to other medications he is taking (unstated), and the doctor suggested that he be allowed to drink at his desk. If we do allow this, then others will want to as well. Do we have to allow this exception to the rule?
A. There are so many "unreasonable" accommodations for employees, that this is really petty. Yes, you must allow the employee to drink at his work station...unless you'd care to find him a position where he is out of the view of others and where he can drink "in private." We're not exactly talking about vodka here.
Q. Three months ago, we hired a woman who now tells us that she is four months pregnant. She says that because of morning sickness, she will need to work reduced hours for a month or more. Do we have to schedule work around her "sickness?" And, while I'm at it, if I had known that she was pregnant when I interviewed her, would I have had to hire her?
A. As to accommodating her reduced hours, yes. As to having to hire her if you had known that she was pregnant, well...you could have stayed within the law by finding someone even better qualified to do the job. However, the laws are quite specific: you may not disqualify an applicant based solely on a disability. (In this case, add to ADA the federal and some states' Pregnancy Discrimination Acts.)
Q. We hired our first blind employee three years ago and, after making some modifications to the workplace, this has worked out very well. We even put an area in his work space as kind of a "napping" quarters for his guide dog. Yesterday an employee came to my office and complained that she's allergic to dogs, and she wants us to bar the guide dog from the building. She's one of our poorer performers and we'd actually like to get rid of her, but now we think we're stuck in trying to accommodate her allergies as well. What should we do?
A. While you're making reasonable accommodations, she's making unreasonable requests. Whether or not you can terminate depends in large measure upon the documentation you have regarding her performance, but yes the timing is lousy. You certainly do not have to bar the dog from the building. If at all possible, you can move her to another office space or install a filtration device in her office, both of which would be reasonable accommodations. However, if she cannot be accommodated in either of these ways, then I'd tell you to take your chances with a claim by her under ADA.
Q. Our company is located in a state that has no required break times during the work day, and we have never had any formal schedule of breaks. Some of our computer operators have been complaining of eye strain, headaches, and even migraines, and we thought that we ought to make a 10 minute break every two hours mandatory for them. Can we give only the computer operators breaks, or would we now have to give all employees breaks?
A. First of all, I am not sure that a 10-minute break every two hours would be considered a reasonable accommodation, and I would suggest that you contact an expert in the field to give you a better idea as to the amount of rest needed. This does not have to be a "human design engineer" in this particular instance; you might just want to ask an ophthalmologist.
Second, and with due apologies, the seven states that have mandatory break periods of 10 minutes for every four hours worked are even on the stingy side. If for no other reason than safety -- if you don't care about employee job satisfaction -- I would suggest a break period of 10 minutes every two hours or "as needed." If employees start taking advantage, then you can crack down.
Q. One of our data input clerks has been diagnosed with carpal-tunnel syndrome. Even with the brace that she now wears, she cannot keep up with the work that she has to do to complete daily assignments. If we reduce her work load, we'll have to hire another clerk which will cost us another $15,000 a year. We only have two "clerical" employees, and only six employees total. Now what?
A. If an employer can show that a "reasonable accommodation" would prove to be an :undue hardship," the employer does not have to accommodate the employee. However, experience has shown that what an employer thinks is an undue hardship does not always coincide with a bureaucrat's view. In two recent cases, by the way, "carpal-tunnel syndrome" were not considered as "disabilities" under ADA. (One case was in the Second and another in the Seventh U.S. Circuit Court of Appeals jurisdictions.)
One possibility would be to hire a part-time employee to pick up the "slack" caused by the employee's inability to do the job. That would certainly be a reasonable accommodation. But, there is another part of the Americans with Disabilities Act that you might rely on: "An employer can hold employees with disabilities to the same standards of production or performance as other...employees without disabilities for performing essential job functions." In a company as small as yours, where you cannot transfer the employee to another position and where the essential work remains the same, you may very well be able to discharge the individual. (This is a case where I would suggest that you talk with an attorney or the EEOC. If the EEOC agrees with my analysis, by all means get the name of the individual you talk to.)
Q. We hired a paraplegic a couple of weeks ago, only to find that the bathrooms in our building do not accommodate wheelchairs. The building owner refuses to retrofit the bathrooms, and we can't afford it. Who pays and what happens if it's us an we really can't afford it?
A. You didn't say what state you're in, but I thought (and I may be wrong) that all public buildings in the U.S. had to have wheelchair access. Anyway, something tells me that if your landlord has to make the restrooms accessible, you can expect a raise in rent the next time your lease is due. Call the EEOC or even your state Department of Labor. The last phone number I have for the Equal Employment Opportunity Commission is 1-800-669-3362.
Q. One of our editors who works at a computer at least six hours a day has complained that, because of the nature of the work, her prescription for eyeglasses has had to be changed twice in the last year. She wants us to pay for the new glasses. (We don't have vision insurance.) We already paid $2,500 for a 21 inch monitor...
A. Not to be flippant, but good editors are hard to find... I would think that this claim could go either way, but I have a hunch that ADA would indeed require you to pay for the prescription which, in a sense is a "tool" to allow her to do her job. But, I can also see your next question and, no I don't think that everyone working at a computer who needs a prescription change would have it paid for by the company. The key here may be that her prescription changed twice in one year, probably caused by eye strain from such a large screen.
Q. We have an employee who has filed a claim for harassment under the "hostile work environment" theory. She says that because her boss gave her two "marginal" performance reviews in the last year, she is now under a great deal of stress. Because of the stress, she wants to be transferred to a new supervisor, and says that we are required to do so under ADA because that would be a "reasonable accommodation." We think the whole thing is bull, but with the way these things normally work against employers, we're not sure that she isn't "right." Your opinion please.
A. It is because of such claims that weak laws become weaker, and I sometimes think that there is a great deal of confusion between "stress" and "pressure." Having discussed that in previous articles, I won't bore you with my stress-pressure diatribe, and I have some good news: in a very similar circumstance in December 1996, the Seventh U.S. Circuit Court of Appeals said, "The ADA does not protect people from the general stresses of the workplace. Being unwilling or even unable to work with a particular individual simply is not the equivalent of being 'substantially limited' in the life activity of working." Earlier last year, the Second U.S. Circuit Court of Appeals ruled in much the same way albeit under different circumstances.
As reported in The Wall Street Journal in January 1997, Lewis Maltby, director of the American Civil Liberties Union Workplace Rights Project was not happy with the Seventh Court's ruling. "The courts have not taken the obligation of reasonable accommodation seriously," Maltby said. And he added the following statement which should make most readers cringe: "How much trouble is it really to change supervisors in many companies?"
There are thousands of questions about ADA and what constitutes a reasonable accommodation. There are questions about reasonable accommodations which have nothing to do with ADA, i.e., can an employer forbid an employee from wearing a turban to work even though the employee considers it "religious" apparel or does there have to be accommodations for religious garb, pins, jewelry, holidays, etc. etc. etc.? For the time being, I would suggest if you really want to know more about reasonable accommodations and ADA that you visit the following site: www.usdoj.gov/crt/ada/adahom1.htm
Footnote: For those who have taken me to task for saying that ADA does not really protect the individual, allow a quote from the 2-18-97 Wall Street Journal: "Employers win about 90% of lawsuits filed by workers under the Americans with Disabilities Act, the American Bar Association says. The lawyers' group says workers often can't provide the level of proof needed to prevail. Workers must show that they are capable of performing their jobs but at the same time that their disability affects them substantially. 'It's a Catch-22,' says John Parry, director of the ABA's Commission on Mental and Physical Disability Law."