We are often asked by clients to assess issues arising from employee performance that may be related to disability. These issues are difficult to analyze, not only from a legal perspective, but also from the standpoint of the employer’s desire to be compassionate to an employee who is dealing with a difficult health related issue. In this post, we will clarify some of the employer’s obligations under the Americans with Disabilities Act (“ADA”) and provide some guidance regarding the balance between providing a “reasonable accommodation” and avoiding “undue hardships.”
First, it is important to understand that just because an employee has not used the terms “disability” or “disabled,” this does not mean that the employer has no obligations under the ADA. While the employer cannot ask the employee directly if they are disabled, the employer should make common sense observations that may lead to the conclusion that a reasonable accommodation should be discussed with the employee, especially if the employee is exhibiting performance issues that appear to be related to some type disabling condition. Remember that a disabling condition is one that limits an employee in the performance of a major life activity, such as working, walking, using the restroom etc. This is a very broad definition, but employers should be aware of it when making observations regarding an employee’s particular condition.
Second, determine if your employee is a “qualified individual with a disability.” In short this requires the employer to determine if the employee can do his or her job with or without a reasonable accommodation. So for example, if an employee who works for UPS drives a truck and delivers packages, he must be able to both drive and walk. If he is injured in a snowboarding accident and his left leg is in a cast up to his waste, he can neither drive nor walk, so he cannot perform his job with or without a reasonable accommodation and would not be a qualifying individual with a disability under the ADA. This is the critical analysis under the Act. The employer must be able to perform the essential functions of his job, not another job. In the UPS example, no further analysis is necessary. But what if the same employee’s injury did not prevent him from driving or walking? What if he could not perform his duties in the time frame that the employer wanted them done, but he could still do them? Now what?
If the employee is a qualifying individual with a disability, the third step to our analysis is determining whether or not a reasonable accommodation can be made to allow the employee to perform the essential functions of his job. Remember that reasonable accommodations are both job and condition specific. Briefly, some examples of reasonable accommodations may include such things as modifying equipment or devices, job restructuring, part-time or modified work schedules, and generally making the workplace accessible to employees with disabilities. To determine what accommodations might be in play, the employer should engage in the “interactive process,” which means talk to the employee.
An employer does not have to provide the most preferred accommodation nor does the employer have to provide an accommodation that will result in an “undue hardship.” However, employers should not be too quick to flee to the “undue hardship” defense. It is difficult to establish “undue hardship.” Factors to be considered include such things as the cost of the accommodation, the size of the employer, the employer’s financial resources and the nature and structure of the employer’s business. Employers should be warned that “undue hardship” is difficult to prove. If the only hardship is that the requested accommodation is expensive, that is typically not enough. The EEOC will look at whether the employer considered such things as available tax credits for providing the accommodation and/or the availability of grants from state or local agencies that would offset the cost of providing the accommodation.
Turning back to our UPS driver who can still perform the essential functions of his job, just not as quickly, there are several options for a reasonable accommodation. For example, the employee could be given extra time to perform his route. If this accommodation did not result in the employer incurring overtime costs or an unreasonable change in the level of service provided to its customers, such an accommodation would likely be reasonable. If, however, the employee needed double the time to perform his job resulting in significant overtime and an interruption of service to customers with the potential for loss of business on the employee’s route, the accommodation would likely not be reasonable.
Understanding and applying the ADA is difficult. The analysis is time consuming and often frustrating. But failure to properly analyze and assess ADA issues can be very costly to an employer. If you face potential ADA and reasonable accommodation issues in your workplace, do not hesitate to contact an Ancel Glink labor and employment attorney to discuss your concerns.