This series of articles was originally written for the Ergo Edge Newsletter, published by Auburn Engineers, a leading ergonomic consulting firm.
As an employment law attorney who focuses on preventive law for employers, I do a lot of legal training for managers through Fair Measures Corp., as well as training for human resources professionals through HR Training Center. One of the issues I deal with repeatedly is how to provide legally-mandated reasonable accommodations for disabled employees. In this series of articles, I will first lay out the Americans with Disabilities Act’s requirements for reasonable accommodations, including the 2009 changes in the law. In Part Two, I will present and analyze a case study, and in Parts Three and Four I will provide a survey of recent case decisions involving ergonomics and reasonable accommodations.
For nearly 20 years, the Americans with Disabilities Act was very narrowly construed by the courts, with employers winning more than 90% of the cases. One reason was the statute’s complicated definition of “disability.” Under other employment laws, such as the Age Discrimination in Employment Act and Title VII of the Civil Rights Act, the protected characteristic is easy to find. For instance: Is the employee male or female? Under or over 40? What is his/her religion? National origin? Race?
It was not so easy under the ADA. While Congress’s stated purpose in enacted the ADA in 1990 was to "provide a clear and comprehensive national mandate for the elimination of discrimination against individuals with disabilities," the law was not interpreted broadly by the courts. Instead, the Supreme Court emphasized the idea that, using rigorous criteria, careful individual assessments had to be made in every case as to whether a person had a disability under the ADA. Physical and mental impairments as serious as monocular vision, epilepsy, muscular dystrophy, diabetes, cancer, and schizophrenia were all held by courts not to meet the statutory definition of “disability”. Most of the time, the court never got to the issue of whether the employer reasonably accommodated a worker’s physical or mental limitations, but threw the case out because the employee was unable to show that he or she had a covered disability.
Congress reacted to the courts by passing the Americans with Disabilities Amendments Act of 2008 (ADAAA), which went into effect on January 1, 2009. In the new law, Congress made it clear that the definition of “disability” must be construed in favor of broad coverage. What Congress wanted to do was shift the emphasis in ADA cases away from fighting over whether the worker had a covered disability. Now the EEOC, the courts, and employers must focus on the interactive process with a disabled worker, where the employer and employee discuss what reasonable accommodations will enable the employee to perform the essential job duties.
A "reasonable accommodation" is a change made to enable a person with a disability to perform the essential functions of the job. Most reported cases involve changes in the work environment, so a qualified worker with a disability can perform the job, and that is where ergonomics often plays an important part.
An individual with a disability is entitled to a reasonable accommodation to enable him/her to perform the essential functions of the job; the ability to do non-essential job functions is irrelevant. It is important that all jobs have current, accurate job descriptions, which detail the essential and non-essential job functions, as well as all physical requirements. In general, it is the responsibility of the disabled individual to inform the employer that an accommodation is needed, but the ADA does not mandate that an employee follow a formal procedure or use “magic words”. To be safest, an employer should consider as a request for accommodation any statement by an employee that a job modification is needed because of a medical condition that might be a disability.
Since each disabled person and his/her medical condition is unique, so will be the reasonable accommodations necessary to enable that person to perform the job.
An accommodation is not reasonable if it causes “undue hardship” to the employer. An undue hardship causes significant difficulty or creates a significant expense for the company (not just one department). It would "fundamentally alter the nature of the business." Buying equipment may well be considered reasonable, especially since according to the EEOC’s ADA Handbook, more than 70% of all accommodations cost between $0 and $500, and the median cost is approximately $240.
Next time: An ADA/ergonomics case study
Kiernan's Corner: Preventive Law for Employers
