Learn about the ADA, what you need to do to comply, and how to ensure your team is ready to handle any requests or complaints.
Employers must contend with many local, state, and federal laws. One of them is the Americans with Disabilities Act (ADA), a federal law preventing discrimination against disabled workers.
Legal filings claiming ADA non-compliance have been rising for several years, topping 11,000 in 2021. According to law firm Seyfarth Shaw, even with the ongoing pandemic, ADA lawsuits are expected to continue their upward trajectory in 2022.
ADA enforcement is definitely on the U.S. Equal Employment Opportunity Commission’s radar. ADA cases totaled 36% in 2021, up from 30% in 2020.
Compliance with the law is crucial for employers in New York and California. They have a longstanding history of being hit with the highest number of ADA lawsuits.
The Americans with Disabilities Act (ADA) is a federal law that requires employers to provide reasonable accommodation to qualified individuals with disabilities who are employees or applicants for employment, except when such accommodation would cause an undue hardship.
It applies to employers with 15 or more employees. The law went into effect in 1990.
A “disability” under the ADA is defined as: A mental or physical impairment that substantially limits one or more major life activities. Major life activities include a broad range of actions, from hearing, talking, and walking to reading, thinking, and learning.
Specifically, a “major life activity” can include but is not limited to:
“Major life activities” also includes major bodily functions such as:
Although the list is quite broad, there have been instances where an employee was not found to be disabled under the ADA. For example, in February 2021, a call center rep with anemia failed to show that she had a disability protected by the ADA. In another instance, a Tyson Farms Inc. tray packer could not show that her back pain and asthma were ADA-covered disabilities.
Before the ADA was amended in 2008, courts and employers spent a lot of time trying to determine whether an employee’s impairment met the definition of “disability.” However, as part of the changes to the law, employers were told to place less weight on that issue and focus on accommodation.
A “disability” under the ADA is defined as: A mental or physical impairment that substantially limits one or more major life activities.
Specifically, a “major life activity” can include but is not limited to:
“Major life activities” also includes major bodily functions such as:
A qualified individual under the ADA is a person who, with or without reasonable accommodation, can perform the job’s essential functions. Essential functions are the primary job duties that an employee must be able to perform, according to the EEOC. Essential functions can vary depending on the job.
In one instance, a federal appeals court ruled that General Dynamics Missions Systems did not violate the Americans with Disabilities Act (ADA) when it terminated the employment of a shelter fabricator worker whose inability to wear steel-toed shoes made her unable to comply with the safety requirements of the job. The court held that she was not a qualified individual under the ADA.
In deciding the job’s essential functions, courts often defer to an employer’s judgment, using job descriptions and employer testimony.
A reasonable accommodation is a modification the worker needs to do the job.
Accommodations can range from simple to complex. For example, the EEOC says a cashier who becomes tired because of an ADA disability can be provided with a stool or permission to sit often if either reduces fatigue.
According to EEOC guidance, other accommodations can include:
The ADA requires that each situation receive an individual assessment.
Workers are not entitled to the accommodation they prefer. Courts have consistently held that employers need only provide an accommodation that allows the employee to do the job.
Employer fears about the costs of reasonable accommodation may be overblown. For example, a 2020 survey by the Job Accommodation Network found that 56% of respondents said the accommodations they implemented cost nothing while the rest of the accommodations had a typical cost of $500. In addition, the organization noted that the $500 typical cost has been consistent “across the many years of the JAN survey.”
The EEOC recommends that employers have an accommodation policy in place before a request is made.
In general, the individual must let the employer know that an adjustment or change at work for a reason related to a medical condition is needed.
The EEOC has said that an ADA accommodation request:
The EEOC has supplied several examples of reasonable accommodations:
However, the EEOC notes that this is not a request for reasonable accommodation: An employee tells his supervisor that he would like a new chair because his present one is uncomfortable. “Although this is a request for a change at work, his statement is insufficient to put the employer on notice that he is requesting a reasonable accommodation. He does not link his need for the new chair with a medical condition,” the EEOC says.
Often, supervisors don’t recognize an accommodation request or ignore it. David K. Fram, director of the National Employment Law Institute’s (NELI) ADA & Equal Employment Opportunity Services, recommends training for managers and front-line supervisors so they can recognize when an employee has made such a request.
Once an employee has requested an accommodation, the company’s responsibility to accommodate comes into play, and employers should engage in the “interactive process” to identify possible reasonable accommodations.
The ADA favors an informal, interactive process — a “back and forth” between the employer and the employee — to find whether a reasonable accommodation is available. Failing to engage in the process isn’t a violation of federal law, but it can be used as evidence of discrimination. However, some states, such as California, require that employers engage in the interactive process, Fram said.
The interactive process is essential, Fram said. “Courts slam employers in instances where they did nothing,” and the “EEOC hates to see a lack of active engagement by employers,” he said.
An interactive process, undertaken in good faith, can protect an employer if a lawsuit is filed. For example, a federal appeals court ruled in 2018 that multiple accommodation attempts showed an employer’s good faith participation in the interactive process even though it never found a workable solution.
SOURCE: David K. Fram, Director of the National Employment Law Institute’s (NELI) ADA & Equal Employment Opportunity Services
Fram suggests that managers should train front-line supervisors to say: How can I help you? He said those words should be the first step in the interactive process.
Employers can show good-faith participation in the process in many ways, the 3rd U.S. Circuit Court of Appeals has noted, including:
The biggest mistake employers make occurs when a supervisor lacks training on what to do and doesn’t engage in the process, Fram said.
Once the employee has established a need, employers should take prompt action, Fram said. Unreasonable delay is evidence of discrimination, he said.
Companies need to document the process, Fram said. Documentation should include the employer’s efforts, the worker’s responses, and follow-up.
Engaging in the interactive process isn’t only for employers. Employees must also take part in the interactive process by, among other things, answering questions and providing requested medical information. The are cases where employers prevail on court claims because the employee did not engage in the interactive process.
For example, in Ali v. Scott Pruitt, a District of Columbia federal trial court threw out a worker’s failure to accommodate a claim. The court ruled that the plaintiff, an economist with the Environmental Protection Agency, caused the breakdown in the interactive process because he had rejected without explanation the EPA’s offer of telework as a reasonable accommodation to his cologne allergies.
The D.C court said the employee’s refusal to explain his rejection of the employer’s offered accommodation was inconsistent with the “flexible give and take” needed to find adequate accommodation.
Employers should check in with the employee to see if the accommodation is working. If not, then Fram suggests that employers “re-engage.”
Employers should also prepare themselves for questions from workers about the accommodation. For example, coworkers may wonder why a fellow employee gets preferential treatment. The EEOC has said that the only thing that employers can say is that it “acted for legitimate business reasons in compliance with federal law.”
However, there are instances where an employer can refuse an employee’s request for a reasonable accommodation. The employer can claim “undue hardship.”
“Undue hardship means significant difficulty or expense and focuses on the resources and circumstances of the particular employer concerning the cost or difficulty of providing a specific accommodation,” according to guidance from the EEOC.
Undue hardship refers “not only to financial difficulty, but to reasonable accommodations that are unduly extensive, substantial, or disruptive, or those that would fundamentally alter the nature or operation of the business,” the EEOC said.
For example, in Anderson v. Harrison County, the U.S. Court of Appeals for the Fifth Circuit decided for the employer on the employee’s ADA failure to accommodate the claim.
The plaintiff, a correctional officer, asked for an eight-hour work shift to accommodate anxiety and depression. This was after restructuring work schedules from an eight-hour to a 12-hour workday. The employer testified that the plaintiff’s request was not workable due to staffing and budget shortfalls.
The appeals court note that although a reasonable accommodation may include part-time or modified work schedules, the ADA does not require an accommodation that would result in other employees having to work harder or longer.
Assessment of whether a reasonable accommodation would cause undue hardship is on a case-by-case basis.
Penalties for non-compliance with the ADA range from injunctions to large financial payouts, including punitive damages. A federal appeals court affirmed a $700,000 jury award against Dollar General. In this case, a manager refused a diabetic cashier’s request to keep a container of orange juice at the counter.
