Service DogThis is Fitzroy, doing service dog duty at an airport. Disability accommodations required of employers, not the least of which is allowing for service animals, are increasing as the number of documented Americans dealing with disabilities is at a historic high. Injured veterans, aging employees and customers, the chronically ill and the suddenly ill or injured all require due consideration by businesses. This area of law is frequently misunderstood and is a trap for the unwary.

The Americans with Disabilities Act (ADA) prohibits employers from discriminating against an individual based on a disability. This affects businesses with respect to customers and employees. Employers need to make their facilities accessible and provide accommodations to any disabled employee (even if they become disabled during the course of employment) to allow the employee to do their job.

Disability Laws, Including the ADA, Apply to Most Employers

Under the Federal law, any employers with fifteen or more employees must accommodate “qualified employees with disabilities.” This includes applicants and current employees.

California’s statutory answer to the ADA is the California Fair Employment and Housing Act (“FEHA”), which, among other things, also requires accommodation of employees with disabilities. FEHA applies to employers with five or more employees.

Missouri’s Human Rights Act (HRA) also requires accommodation of employees with disabilities. HRA applies to employers with six or more employees.

The Definition of a Disabled Individual is Broad

Many employers mistakenly only consider an employee disabled if they are sight or hearing impaired, or in a wheelchair. The reality is that the legal definition of someone who qualifies as disabled is much broader, and may include someone a casual observer would not consider disabled (such as a person with a common chronic illness, like Type II diabetes).

An individual has a disability under the ADA if she has a physical or mental impairment that substantially limits one or more major life activities, has a record of such impairment, or is regarded as having such an impairment.  A major life activity includes working. So, in essence, an employee who has any impairment that interferes with their employment without an accommodation is considered protected. Even an employee who is suffering from alcohol abuse can be a protected disabled individual under this definition.

Employers Must Make Good Faith Attempts to Reasonably Accommodate

If the employee can do the job with a reasonable accommodation, the employer needs to provide it. To encourage compliance with this, it is mandatory for an employer to explore accommodations using an interactive process, even if the ultimate determination is that the employer is neither required nor able to accommodate the disabled employee.

The question an employer must ask first is: What are the essential job functions for this employee’s position?  The Americans with Disabilities Act requires that the employee be able to perform the essential functions of the job with or without reasonable accommodations before making the employer provide them. The employer is duty bound to attempt to provide reasonable accommodations to a “qualified individual with a disability,” as long as these accommodations do not impose an undue burden on the employer. The effort gone through by the employer must be documented, and show a good faith attempt to help the employee succeed before accommodations are rejected or the employee dismissed. The employer should work with the employee’s doctor or other occupational professionals whenever that option presents itself.

The standard for an undue burden in an accommodation can be difficult to meet and is determined on a case-by-case basis. Generally, employers should seek to provide reasonable accommodations when faced with disabled employees and wherever feasible. “Reasonable accommodations” for disabled workers can include an array of options, as they depend on the employee’s disability. Some examples include:

  • Modifying work schedules
  • Acquiring adaptive equipment or modifying work equipment
  • Modifying examinations, training, or other programs
  • Reassigning employee to a vacant position for which he/she is qualified
  • Allowing telecommuting
  • Allowing for limited leaves of absence
  • Allowing for time off for health care, appointments or recovery from episodes of illness

The Liability For Disability Discrimination Outweighs the Cost of Interactive Process and Accommodation

This area of law is by far the most frequent area for employer errors seen by Bellatrix PC’s employment attorneys. All too often, an employer is short-sighted in the expense of accommodating an employee, or feels threatens by such requests and seeks to terminate an employee after just going through the most minimal of efforts. This is a mistake. The cost of failing to go through the interactive process will easily be in the six figures just to defend a lawsuit. The damages can be years’ worth of salary, attorneys’ fees and, in some cases, punitive and exemplary damages. It is wise to learn best practices for dealing with employee illnesses, injuries and disabilities early, and to apply them rigorously.

 

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