Accommodating Business--Part II Don't let your business be disabled by disability lawsuits.
By Patrick M. Gavin
This is the second part of an article examining how to help prevent disability lawsuits from becoming a disabling risk for small business owners. Part one, published last month, described the various definitions of the term "disabled." (Visit www.kcsmallbiz.com to read Part one online.) This second part looks at how small businesses should proceed once they have sufficient information to believe an individual is disabled.
What Is a Reasonable Accommodation? Once you determine that an individual qualifies as disabled, you must engage in an interactive process to determine if a reasonable accommodation can be made to allow the disabled individual to perform the essential functions of the job. During this give and take interaction, the employee provides information about his or her limitations and both parties discuss possible solutions. What will ultimately be considered "reasonable" depends on the particular circumstances.
The Americans with Disabilities Act (ADA) considers "reasonable accommodation" in two general ways: 1. Making existing facilities readily accessible to and useable by individuals with disabilities 2. Job restructuring, part-time or modified work schedules, reassignment to a vacant position, acquisition or modification of equipment or devices, appropriate adjustment or modifications of examinations, training materials or policies, the provision of qualified readers or interpreters, and other similar accommodations for individuals with disabilities.
No Clear Definition The ADA, however, does not define the term "reasonable," but rather merely excludes any accommodations that are an "undue burden."
Unfortunately, 15 years of litigation have provided very few clear rules to apply in determining what is considered reasonable. Some examples of potential accommodations that may be reasonable, depending on the particular circumstances, include a leave of absence, transfer to a position that the individual is qualified for, alteration of non-essential job functions, removal of physical barriers or a reduced work day. Advances in technology also now make consideration of telecommuting or other stay-at-home work options necessary in the accommodation analysis.
Courts have usually found that it is unreasonable to require the employer to create a new job, eliminate essential job functions, violate the terms of a seniority system in a collective bargaining agreement, allow open-ended or indefinite leaves of absence, or excuse unacceptable performance or violation of conduct policies. It is also clear that an employer does not have to grant the accommodation that is preferred by the employee. Rather, offering reasonable alternatives satisfies the obligation.
Refusing to Make Accommodations Even if a reasonable accommodation exists, an employer can refuse to implement it if the employer can show one of two defenses.
First, no accommodation is necessary if it presents an undue hardship. The term "undue hardship" is defined as an action requiring significant difficulty or expense in light of the following factors: the nature and cost of the accommodation, the employer's financial resources at the facility in question, the number of employees at the facility, the employer's overall financial resources and size, the type of operation, geographical separateness, composition of the workforce and the fiscal responsibility to the facility in question with the employer[VPWC1]'s overall business. While these factors appear to involve cost estimates, relying on unsubstantiated facts about costs is usually insufficient. Therefore, an employer considering this defense will need a reasonable assessment of the evidence concerning each factor before rejecting an otherwise reasonable accommodation based only on cost concerns.
The statutory language of the ADA also permits employers to exclude disabled individuals who are a "direct threat to others." The Equal Employment Opportunity Commission (EEOC) interpreted this language to include a direct threat to the disabled employees themselves. However, for a long time it was unclear if the statutory limitation would prevail over the interpretation by the EEOC. The U.S. Supreme Court agreed with the EEOC and upheld a company's decision not to hire a contractor as a permanent employee because the employee presented a direct threat to himself. However, like the other key definitions under the ADA, this defense rests on factual and medical-related evidence. Again, like the undue hardship defense, an employer considering a direct threat defense will need to gather evidence to support each factor. This most likely will include evidence from health care providers or occupational specialists.
Advance Preparation Dealing with disabled employees is a reality for businesses of all sizes. It requires a reasoned, objective and proactive approach. An employer should put in place policies and job descriptions long before an actual disability situation arises. When a situation arises that may involve disability laws, the careful employer will assess all the facts and avoid jumping to conclusions. Because of the individualized analysis required, it is important to gather all the facts, including medical information and occasional legal advice or medical opinions, before making a decision concerning an individual who may be disabled.
Patrick Gavin has more than 11 years of experience in counseling companies on all aspects of employment laws, as well as defending employment-related lawsuits and claims. You can reach him at Husch & Eppenberger, LLC, (816) 329-4717 or .
