{5:48 minutes to read} What happens if an employer has an employee or an applicant for a position who advises that they have a disability and will require special accommodations to perform their job? That scenario creates a challenge in which the employer must balance the fairness to the employee and/or applicant against the cost of satisfying the accommodation and, of course, being compliant with the law.

Title I of the Americans with Disabilities Act of 1990 (ADA) “requires employers to provide reasonable accommodation to qualified individuals with disabilities who are employees or applicants for employment, unless doing so would cause undue hardship.” An accommodation is defined as any change in the work environment or in the way things are customarily done that enables an individual with a disability to enjoy equal employment opportunities. Some examples of a reasonable accommodation may include:

• Allowing an employee to take time off from work for doctor’s appointments or visits to a therapist

• Allowing an employee a flexible work schedule so that the employee may work more hours on good days and fewer hours when necessary

• Restructuring the job description to eliminate non-essential functions

• Providing a wheelchair-accessible worksite, a sign language interpreter, or Braille materials

• Providing an ergonomic chair or other modified workspace equipment

A modification or adjustment is “reasonable” if it is effective in meeting the needs of the individual, allowing the employee to perform the essential functions of the position. Similarly, a reasonable accommodation enables an applicant with a disability to have an equal opportunity to participate in the application process and to be considered for a job.

Non-Qualified and Undue Hardship

However, there are important qualifications to this rule. A person with a disability who is unable to perform the essential functions of the job, even with the benefit of a reasonable accommodation, is not a “qualified” individual with a disability as defined by the ADA. Nor is an employer required to lower its production standards in order to accommodate an employee or applicant.

In addition, an employer is not required to provide “reasonable accommodation” if it would cause “undue hardship” to the employer. An undue hardship is defined as an “action requiring significant difficulty or expense” when considered in light of a number of factors. These factors include the nature and cost of the accommodation in relation to the size, resources, nature, and structure of the employer’s operation. If an employer has the option of multiple accommodations, the employer may choose the less expensive or burdensome one as long as it is effective.

An employee or applicant seeking an accommodation can make the request on his own or through a third party. Once that request is made, the employer must engage in a “flexible interactive process” which is essentially a dialogue with the employee to determine which kinds of accommodations might be effective and practical. The employer has the right to request medical documentation of the disability and, in some cases, can request the employee or applicant submit to an examination by a healthcare professional designated by the employer for purposes of documenting the need for accommodation and disability.

Substance Abuse Issues

One particular challenge facing employers is employees with alcohol or drug issues, as they may have a disability under the law:

• Alcoholism is a disability covered by the ADA. This means that an employer cannot fire or discipline a worker simply for being an alcoholic. However, an employer can fire or discipline an alcoholic worker for failing to meet work-related performances and behavior standards imposed on all employees—even if the worker fails to meet these standards because of alcohol abuse.

• Employees who use illegal drugs do not have a disability within the meaning of the law and therefore don’t have the right to be free from discrimination or receive a reasonable accommodation. However, the ADA does cover workers who are recovering drug users who have completed or are participating a supervised drug rehabilitation program.

In addition, an employer must seek to accommodate an employee taking a legal drug and the side effects that the drugs have on the employee. However, they do not have to accommodate legal drug use if they cannot find a reasonable accommodation.

The issues of disability, reasonable accommodation, and undue hardship present major challenges to an employer. It is, therefore, important to address every issue on a case-by-case basis, maintain a positive interactive process with the employee or applicant, and consult experienced counsel when necessary.

 

Alan Krystal

Alan H. Krystal, P.C.
631 780 6555
Alan@alankrystallaw.com