If you weren’t familiar with the Americans with Disabilities Act (ADA) before the pandemic, you probably are by now. The ADA has been a major reference point for COVID-19 response. For example, with the confidentiality of medical information (like employee temperatures) or reasonable accommodation for those with high risk for a serious case of COVID-19.
In this article, we’ll define some of the key terms in the ADA that every employer should be comfortable with.
The Americans with Disabilities Act (ADA)
Before we dive in, let’s start with the basics. The ADA is a federal law that prohibits discrimination against applicants and employees with disabilities. It also requires that employers provide these individuals with reasonable accommodations under certain circumstances.
The law applies to all private employers with 15+ employees. However, many states have similar disability laws for businesses with lower employee counts. Most state disability discrimination laws are similar to the ADA, so even if you’re a very small employer, this article may include useful information.
Even though the ADA has been around for decades, there’s still 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 uses terms such as undue hardship and reasonable accommodation, which are subjective in nature. That leaves many of these concepts open to interpretation (and confusion, for employers!).
Unfortunately, there’s no getting completely around the ADA’s unavoidable ambiguity. However, employers can feel more confident in their application of the law by reviewing and understanding its most important concepts.
Let’s start with the term disability. According to 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. The definition also includes individuals with a history of such an impairment or someone who is regarded as having such an impairment.
While the law does not have a list of impairments that are covered, it does identify some major life activities that could be limited by a disability. These include:
- Caring for oneself,
- Performing manual tasks,
- Seeing, speaking, hearing, breathing, eating, and sleeping,
- Walking, standing, lifting, and bending,
- Learning, reading, concentrating, thinking, communicating, and working.
Major life activities also include major bodily functions. For example, the immune system and digestive functions. In short, the definition of disability under the ADA is pretty broad.
The most often misunderstood part of this definition is the phrase “regarded as disabled.” This phrase becomes important if the employer takes any adverse action because they believe a disability may exist.
To illustrate, say a hiring manager removes a candidate from consideration (adverse action) because the manager believed that the candidate has social anxiety. In this case, the manager has illegally discriminated against the candidate because they regarded the candidate as disabled. Based on this adverse action, the candidate would have a claim under the ADA. (Even if they do not actually have social anxiety!)
Employers also encounter the ADA when an applicant or employee asks for a reasonable accommodation. According to the Equal Employment Opportunity Commission (EEOC), a reasonable accommodation is “any change in the workplace or the way things are customarily done that provides an equal employment opportunity to an individual with a disability.”
Reasonable accommodations can cover most things that enable an individual to apply for or perform a job. They can also cover accommodations that provide equal access to the workplace and employee benefits. For example, kitchens, parking lots, and office events.
Common accommodations include:
- Modifying work schedules
- Altering how job duties are done
- Eliminating 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
- Providing materials in alternative formats (e.g., Braille, large print)
During the pandemic, working from home is a commonly requested accommodation that will almost always be reasonable for employees who do most of their work at a computer. However, not every requested accommodation is “reasonable”.
For example, employers are not required to remove an essential job function (i.e. the receptionist answering the phone). Employers also aren’t required to provide items for personal use (i.e. wheelchairs or hearing aids).
If an employer does provide an accommodation, it’s important to evaluate its effectiveness. An accommodation set up today might not work well for the employee or company two years from now. It’s okay to reassess later whether an accommodation remains reasonable given changed circumstances.
Under the ADA, employers must provide reasonable accommodations as long as doing so does not create an undue hardship on the organization. According to the EEOC, an undue hardship is a significant difficulty or expense.
The cost of an accommodation is one possible undue burden on the employer. However, the accommodation’s duration, expansiveness, or disruption could also cause undue hardship.
For example, 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 employers are claiming accommodation is unreasonable due to cost alone, they should remember that the standard is “significant expense.”
Under federal regulations, employers should consider the size of the organization and affected facility. They should also consider their overall financial resources and any tax credits, deductions, or outside funding available. Whether an accommodation would cause an undue hardship is something employers must assess on a case-by-case basis.
If an employee requests an accommodation, such as working from home during the pandemic or taking unpaid leave if their job doesn’t lend itself to telework, the employer should engage in an interactive process to determine if that request is reasonable.
The EEOC explains that the employee and the employer should “communicate with each other about the request, the precise nature of the problem that is generating the request, how a disability is prompting a need for an accommodation, and alternative accommodations that may be effective in meeting an individual’s needs.”
Basically, the interactive process is an ongoing conversation with an employee who has indicated that they need an adjustment or change at work related to a physical or mental issue. They may specifically request a reasonable accommodation under the ADA. However, expressing their needs in “plain English” is also acceptable.
Then, together, the employer and the employee determine the appropriate next steps.
We encourage employers to visit the HR Support Center to learn more about the Americans with Disabilities Act. Simply search “ADA” to find guides, 2-Minute HRs, and other articles on this important law.
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