Originally published July 13, 2011
Employers with fifteen or more employees are governed by federal
regulations that took effect on May 24, 2011 to implement the
Americans with Disabilities Act Amendments Act of 2008
(ADAAA).1 The new regulations and the slightly older
statute expand the circumstances in which an employer must provide
reasonable accommodation for an employee's physical or mental
condition. This makes it even more important that managers
(including Human Resources professionals) think through in
advance not only how they will respond to an employee's
physical or mental impairments, but also how they will defend their
actions later, if challenged in a court or government agency.
Deciding whether to "reasonably accommodate" an
employee's disabling condition can be a complex responsibility.
In few other areas of employment law are the rules as fluid and
dependent on factual and procedural nuance. And while the direct
involvement of an experienced employment attorney often is
essential, managers need to have their own understanding of the
overall process. They thus may benefit from the following
step-by-step methodology when crafting how the employer will
respond to an employee's impairments.
Step 1. Anticipate at the outset that you later may have to prove the reasonableness of the actions you take.
If challenged by a claim in a government agency or court, the employer will have to prove each part of its overall response to an employee's disability. Managers therefore need to plan at the outset for testimony that could be required years later concerning the timing and substance of their actions. It is at this initial stage that the assistance of an employment law attorney may be most useful. One of the points that you can expect to cover with your attorney is that accurate, detailed, and contemporaneous documentation of management's response (including each of the steps outlined below) is essential. Without solid documentation of pertinent facts and the actions taken by management in response, incorrect allegations by an employee-turned-plaintiff can be difficult to disprove.
Step 2. Determine whether the employee has a "disability" based on the "actual disability" or "record of" parts of the statutory definition.
"Disability" is statutorily defined as either
(a) "a physical or mental impairment that substantially limits
one or more major life activities," (b) "a record of such
impairment," or (c) "being regarded as having
such impairment." 42 U.S.C. § 12102(1). The
employer's obligation to provide reasonable accommodation
extends only to those disabilities that satisfy definition (a) or
definition (b) – i.e., the "actual
disability " or "record of" definitions. An employer
has no obligation to provide reasonable accommodation to an
employee meeting only the "regarded as" definition.
Mental or physical conditions are "actual disabilities"
if they "substantially limit" anything considered by the
law to be a "major life activity." Because of the ADAAA
and the new regulations, "major life activity" has to be
construed expansively. A non-exhaustive list of "major life
activities" now includes (a) caring for oneself, (b)
performing manual tasks, (c) seeing, (d) hearing, (e) eating, (f)
sleeping, (g) walking, (h) standing, (i) lifting, (j) bending, (k)
speaking, (l) breathing, (m) learning, (n) reading, (o)
concentrating, (p) thinking, (q) communicating, (r) working, (s)
operating major bodily functions, (t) sitting, (u) reaching, and
(v) interacting with others.
The ADAAA and the new regulations also require that the phrase
"substantially limits" be construed expansively. A
"substantial" limitation does not have to be
"significant" or "severe." If impairment is
episodic or in remission, then the condition is a disability if it
would substantially limit a major life activity when active.
Medical or scientific evidence typically will not be
required to make the necessary assessment.
And to ensure that no one misunderstands the more pro-employee
direction now being taken by the law, the new regulations expressly
set forth an "important signal to both lawyers and
courts." Parties now are "to spend less time and energy
on the minutia of an individual's impairment, and more time and
energy on the merits of the case – including whether
discrimination occurred because of a disability, whether an
individual was qualified for a job ..., and whether a reasonable
accommodation was called for."
Thus, under the new rules, virtually all mental or physical
impairments will be disabilities, virtually all employees with such
impairments will have special protection, and in only the rarest of
cases will an employer be able to defend by arguing that an
employee with such impairment was not disabled.2
Step 3. Determine whether the disabled employee is a "qualified individual" within the meaning of the law.
Under federal law, only "qualified individuals" have
protection from disability discrimination. An employee is a
"qualified individual" if he or she (a) possesses the
requisite skill, experience, education, and other job-related
requirements for the position, and (b) is able to perform the
"essential functions" of his or her position with or
without "reasonable accommodation."3
A manager's determination about whether an employee can perform
the "essential functions" with or without
"reasonable accommodation" must be supported by evidence
that will withstand the employee's challenge, and it should
reflect understandings such as the following:
- Not every function of a job is "essential." "Essential" functions are those that are fundamental to the particular position, not those that are merely marginal.
- The evidence proving whether a particular "function" is "essential" can vary. Depending on circumstances, it could include, but not be limited to, the employer's judgment, the amount of time on the job performing that particular function, written job descriptions prepared before advertising or interviewing applicants for the job,4 work experience of present or past incumbents in the job, and the work experience of incumbents in similar positions.
Step 4. Engage in an "interactive process" – i.e., have a dialogue with any "qualified individual" who meets the "actual disability" or "record of" definitions of disability; the purpose of the dialogue is to determine whether a reasonable accommodation can be provided to the individual's known physical or mental limitations.
As noted above, the employer does not have to provide reasonable
accommodation to an employee who meets merely the "regarded
as" definition of disability. But otherwise, an employer must
provide reasonable accommodation to the known physical or mental
limitations of a disabled employee or applicant who is a
"qualified individual," unless there is undue
hardship.
The nature of the reasonable accommodation can vary. It might
include actions such as making existing facilities readily
accessible to and usable by disabled individuals, job
restructuring, part-time or modified work schedules, reassignment
to a vacant position, acquisition or modification of equipment or
devices, and adjustment or modification of examinations, training
materials, or policies, or others.
And at this point, procedure can be crucially important.
The employer should engage the disabled employee in an informal,
interactive process -- a dialogue -- not only to identify the
precise limitations resulting from the disability but also to weigh
the potential reasonable accommodations that could overcome those
limitations. Documentation of this interactive process is
essential. Whether a reasonable accommodation exists (or
whether there is undue hardship) may be a close call in a contested
case. And because those decisions are likely to be subjective,
reasonable people (i.e., the affected employee and/or a
judge) might disagree about whether the decisions were properly
grounded. When the employer has substantial documentation showing
how hard management worked to engage the disabled employee in the
interactive process, courts are more prone to conclude that the
employer behaved reasonably in general.
Step 5. Determine whether reasonable accommodation can be provided without undue hardship.
It is unlawful for an employer to fail to provide reasonable
accommodation to an employee or an applicant who is a qualified
individual with a disability, unless the accommodation would impose
"undue hardship" on the operation of the employer's
business.
"Undue hardship" is defined as significant difficulty or
expense when considered in light of factors such as (a) nature and
cost of the accommodation, (b) the overall financial resources and
size of the facility involved in the provision of the reasonable
accommodation, and (c) the overall financial resources and size of
the employer, and (d) the impact of the accommodation on the
facility and on other employees.
Thus, depending on the circumstances, it may be hard for a
well-endowed employer to argue that cost alone constitutes an undue
hardship sufficient to excuse a lack of reasonable
accommodation.
Step 6. Take affirmative steps to preserve your evidence.
This last step is little more than the logical extension of the
first step. Particularly when an accommodation is not provided or
does not satisfy the employee, the employer's documentation
needs to be factual, accurate, and complete. In a hotly contested
case, a court might not know with absolute confidence whether any
purported accommodation was "reasonable," or whether a
hardship actually was "undue," but it is more likely to
uphold the employer's determinations in those areas if the
reasonableness of management's decision-making process is
straightforward and well-documented.
We thus end about where we started, with the observation that
deciding whether to reasonably accommodate an arguably disabled
employee can be one of the most complex responsibilities a manager
will face. Few areas more frequently will demand an experienced
attorney's advice.
Footnotes
1 On July 26, 1990, President George H. W. Bush signed
into law the Americans with Disabilities Act of 1990 (ADA). Title I
of the ADA thus established federal disability rules applicable to
employers with fifteen or more employees. The ADAAA amended those
statutory rules. The new regulations, published by the Equal
Employment Opportunity Commission, implement the ADAAA and are
found at 29 C.F.R. Part 1630 and on the EEOC's website.
2 There are, however, notable statutory exceptions.
"[H]omosexuality and bisexuality are not impairments."
And the following are not disabilities even if they are
substantially limiting impairments: transvestism, transsexualism,
pedophilia, exhibitionism, voyeurism, gender identity disorders not
resulting from physical impairments, other sexual behavior
disorders, compulsive gambling, kleptomania, pyromania, or
psychoactive substance use disorders resulting from current illegal
use of drugs. See 42 U.S.C. § 12211.
3 But "a qualified individual with a disability shall not
include any employee or applicant who is currently engaging in the
illegal use of drugs, when the [employer] acts on the basis of such
use." 42 U.S.C. § 12114(a).
4 Written position descriptions can be particularly helpful in the
defense of an employer's actions. For purposes of determining
whether an employee is a "qualified individual" who is
protected by disability discrimination laws, "consideration
shall be given to the employer's judgment as to what functions
of a job are essential, and if an employer has prepared a written
description before advertising or interviewing applicants for the
job, this description shall be considered evidence of the essential
functions of the job." 42 U.S.C. § 12111(8).
This update is for information purposes only and should not be construed as legal advice on any specific facts or circumstances. Under the rules of the Supreme Judicial Court of Massachusetts, this material may be considered as advertising.
