The Americans with Disabilities Act (ADA) requires employers to provide reasonable accommodations to qualified employees with disabilities. For all the kicking and screaming by employers about making accommodations, you’d think accommodations cost them millions of dollars – but it’s not true! Accommodations for people with disabilities are usually extremely low or even no cost. The Job Accommodation Network (JAN) conducted a study recently that showed as many as 56 percent of workplace accommodations cost NOTHING. Of those accommodations that did have a cost, the average one-time cost was $600. What other kind of investment could an employer make in their employees that would buy them so much goodwill?
What conditions are covered as disabilities?
The ADA does not contain a list of specific medical conditions that constitute disabilities. Rather, whether an employee has a disability is considered on a case by case basis, based on how the employee is affected by his or her medical condition. Thus, two employees who have Multiple Sclerosis may be affected totally differently, and one may be considered disabled because their disease is in an exacerbation phase, while the other may not. These two employees may require totally different accommodations as a result of their disabilities because they’re each affected differently by their disease, even though they have the same disease.
How does the ADA define disability?
A person has a disability if s/he “has a physical or mental impairment that substantially limits one or more major life activities.” The two factors considered include: 1. Whether the employee has an impairment, and 2. Whether the employee’s impairment substantially limits one or more major life activities. In addition, a person can meet the ADA’s definition of disability by having “a record of” or “being regarded as” having an impairment or disability.
What special language do I need to use to request an accommodation?
None. According to the Americans with Disabilities Act, an employee need not mention the ADA or use the phrase “reasonable accommodation” in order to request an accommodation. The employee need only use “plain English”. The case that established this was Schmidt v. Safeway Inc., 864 F. Supp. 991, 997, 3 AD Cas. (BNA) 1141, 1146-47 (Or. 1994) (“statute does not require the plaintiff to speak any magic words…The employee need not mention the ADA or even the term ‘accommodation.’”) Several other cases in subsequent years mirrored the Schmidt decision, but Schmidt was the first. So – the employee need only say, for example, “The smell and the grease from the cooking bacon is making me physically ill” – and the employer has thus been notified that the employee needs an accommodation. The burden then shifts to the employer to begin the “interactive process” to find a reasonable accommodation that will work for the employee.
What is the “interactive process”?
Contrary to what many employers believe, the interactive process does not mean that they get to automatically dictate the accommodation. But neither does the employee. “Interactive” means talking to one another. The employer should begin by asking the employee what type of accommodation might work best. Frequently, the employee can articulate a fast and inexpensive accommodation. For example, for an employee who has a mobility disability, perhaps s/he requires more time to return to his or her work area from breaks before being considered tardy. The employee may offer the employer a number of possible accommodations and the employer may choose one of them. The employee may suggest that both parties go to a website together such as www.askjan.org to explore possible accommodations. More about www.askjan.org later. The point is, the employer should TALK with the employee about what accommodations might be helpful, rather than dictating TO the employee what MUST be done. If the employer just takes some action, it will be perceived as retaliation against the employee.
Once an accommodation is in place, can it be changed?
Yes. In fact, the ADA requires that accommodations be monitored for effectiveness. Once an accommodation is in place, the employer should be checking back with the employee periodically to make sure that the employee is still able to perform the essential functions of his/her job with the accommodation, whether the employee continues to require the accommodation, or whether the accommodation needs to be changed or dropped.
Want more information?
A terrific resource exists for both employees and employers, in a website called www.askjan.org. This website is sponsored by the Job Accommodation Network, and is an arm of the Department of Labor. The website has a searchable database of recommended accommodations for various disabilities, access to training materials, links to the law itself, the ADA’s Compliance Manual, and information on filing an EEOC complaint. It’s kind of the one-stop-shopping resource for anyone with disabilities.
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