Employer Tutorial Chapter 9:
It's also about the law
 
 

Why this? Why now?

The ADA was passed in 1990 amidst a great hope that people with disabilities would finally have equal opportunity and access in all areas of life. To some extent, this hope has been realized. Yet, there is still a long way to go.

Because of several Supreme Court decisions handed down in the 1990’s, it was widely felt that the implementation of the ADA was no longer aligned with the intent of Congress in passing the ADA in 1990. Because of this, the ADA Amendments Act (ADA AA) was passed in 2008 and became fully enforceable in 2011. The basic definition of disability was not changed by the ADA AA: a mental or physical impairment that substantially limits one or more major life activities. The individual is covered by the ADA if they: 1. Have the disability; 2. Have a record of a disability; 3. Are regarded as having a disability.

Though the basic definition of a disability has not changed, some of the terms within this definition were expanded so that more people with disabilities would be covered under the law and given the protections against discrimination that Congress intended in 1990. A full discussion of the impact of the ADA AA on employment is outside the scope of this document. The key point for employers is that they should now focus less on the question of whether an employee has a disability under the law. Rather, they should ensure that an effective accommodation process is put into place and that individuals with disabilities are not discriminated against during recruitment, hiring, promotion, job benefits, or termination processes.

Most employers do have a basic knowledge of the employment provisions of the ADA. But they may struggle with applying the law in the “messiness” of everyday life in the workplace. In what follows, we provide a brief overview of some real-life questions and dilemmas we have heard in the Northeast ADA Center during our many years of experience responding to inquiries from employers.

 

We have a hiring manager who likes to ask candidates if they have any disability that would prevent them from doing the job. Is this OK to ask?

No. This is a disability inquiry that is not OK to ask during a hiring situation. Instead, ask this question: "Can you perform the essential functions of this job with or without reasonable accommodation?" And understand that this is simply a yes/no question; it is not a prompt to ask the candidate if they will need reasonable accommodation or to discuss the reasonable accommodation they will need.

 

When we are hiring, we sometimes ask applicants to demonstrate how they perform one of the essential functions of the job. We do this when we see an applicant we think might have difficulty—like someone who is older, overweight or walks slowly. Is this OK?

No. As an employer, you may ask job applicants to demonstrate how they would perform an essential function of the job. BUT, it is best practice to ask this same question of all candidates, regardless of your initial impressions of each applicant’s competence. Also, applicants can use a reasonable accommodation when demonstrating how they would perform this task.

 

An employee recently brought in a note from their doctor verifying that they had a disability. Does this mean they are covered under the ADA?

Not necessarily. The ADA covers individuals who have a mental or physical impairment that substantially limits one or more major life activities, or those who have a record of or are regarded as having such an impairment. A note from a doctor indicating a disability does not necessarily indicate that this person’s disability rises to the level of a disability under the ADA. While there are some disabilities that will virtually always constitute a disability (i.e. epilepsy, diabetes, cancer, HIV infection and bipolar disorder), the employer can require additional documentation in order to verify the need for an accommodation and implement the best accommodation solution.

 

We’ve tried to provide an employee with a reasonable accommodation, but it didn’t work. She doesn’t want to use the accommodation because she says it takes too long to learn and it doesn’t help her. But her productivity is slipping. What do we do?

As an employer, you must show a good faith effort to ensure that the reasonable accommodation is in place and is effective. When the accommodation is being planned, it’s important to plan for "check ins" to make sure the accommodation is effective. Also, many accommodations simply take some time to get used to. How long has she tried to use the accommodation? Is more time needed? Finally, many accommodations may require some initial training or coaching, particularly if a new assistive technology device is being used. Was this provided in this case? If you have made a good faith effort to accommodate the employee and the employee refuses any accommodation that is suggested, address the performance issue.

 

We have an employee who has told us he has a disability and needs accommodation, but does not want to go through the process we have in place in our company to request a reasonable accommodation. Do we still have to act upon his request?

Probably. Whenever and however an employee (or anyone acting in his/her behalf) informs the employer that they have a disability, the employer is legally “on notice” that the accommodation process must be put into motion. The employee does not need to use special legal or medical terms to request an accommodation. Employers can request medical documentation to help in determining an accommodation need, but the employer is not required to ask for medical documentation. Employers must avoid the use of unduly complex or burdensome accommodation request procedures and should avoid collecting documentation that is not directly related to the disability and/or the accommodation request.

 

We have an employee who we suspect of having a mental health disability which she has not disclosed. Until recently, she was doing well in her job. But several weeks ago she began to deteriorate and her performance is slipping. Her manager believes she has gone off her medications and wants to pull her in for a conversation so that he can help her get back on her medications. Would this be OK?

No. Employers should not make attempts to monitor an employee’s medications. As an employer, you are required to accommodate KNOWN disabilities. In this case, this individual has chosen not to disclose her disability so regardless of this manager’s speculation about her condition, this is not a known disability. Until the employee discloses her disability, this situation should be treated like any other performance issue. Have a private performance discussion with this employee where concrete, specific performance issues are laid out, performance expectations are made clear and consequences of failing to meet these expectations are discussed. During this conversation, ask this employee the same question you would ask anyone else who is having performance problems: “Is there anything I as your manager can do to help you improve your performance?” If she chooses to disclose her disability in this conversation, the manager is then on notice that an accommodation may be needed. If not, this issue would be treated as any other performance problem.

 

We had an employee who knew he had a disability when we hired him, but chose not to tell us. Now, two years later, he has disclosed this disability and says he needs a reasonable accommodation. Do we still need to provide this accommodation even though he lied during the interview?

Yes. And this employee’s decision not to disclose his disability during the interview would not be considered a "lie." Job applicants have a right to choose whether or not to disclose in a hiring situation. Further, many disabilities change over time. The employee may not have felt he needed an accommodation at time of hire, but the disability may have changed during his employment and an accommodation may now be needed.

 

Our business, workplace, and job functions have changed a lot over the past few years. We have an employee whose reasonable accommodation is no longer working for the new functions of the job. Can we terminate this employee in this situation?

No. Employers can make changes in essential job functions when the employer can demonstrate that these changes are job-related and consistent with business necessity. But after making these changes, the employer needs to make a good faith effort to determine a reasonable accommodation that will enable the employee to be productive for the new essential functions of the job.

A key point for responding to dilemmas such as the ones above is to understand that ADA lawsuits are not flooding our courts and are actually quite rare. Only a tiny percentage of the millions of employers in the U.S. have actually had an ADA employment-related charge (U.S. Department of Labor, 2008; McMahon, 2010). By simply making and documenting your good faith efforts to hire the most qualified candidate (whether or not they have a disability) and to provide reasonable accommodations for known disabilities, you will come a long way in preventing an ADA employment lawsuit.

 
References
 

References

 

U.S. Department of Labor, Office of Disability Employment Policy (2008). Employers and the ADA: Myths and Facts. Retrieved June 15, 2008 at www.doleta.gov/disability/htmldocs/myths.cfm.