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Statute In The Spotlight

Americans with Disabilities Act TITLE 42 - THE PUBLIC HEALTH AND WELFARE CHAPTER 126 - EQUAL OPPORTUNITY FOR INDIVIDUALS WITH DISABILITIES – Reasonable Accommodations  

The Americans with Disabilities Act places the burden on both the employer and disabled employee to work together in finding reasonable accommodations for the disabled worker. Please contact any of Heyl Royster's offices to discuss how to properly navigate the ADA requirements for employers.

What: The United States enacted the Americans with Disabilities Act ("ADA") in 1990. Under the ADA, employers are required to make reasonable accommodations for their disabled employees.

Who: The ADA requirements apply to all employers with 15 or more employees, including state and local governments.

Disabled Employee: To succeed with a claim of discrimination under the ADA, a disabled employee must establish that: (1) he has a disability as defined under the ADA; (2) he is qualified to perform the essential functions of his job, either with or without reasonable accommodation; and (3) he suffered an adverse employment action because of the disability. Under the ADA, a "disability" means a physical or mental impairment that substantially limits one or more major life activities of such individual. A person is a "qualified" individual with a disability if he or she is an individual with a disability who, with or without reasonable accommodation, can perform the essential functions of the employment condition that such individual holds or desires.

Things to know: Employers can be found liable for discrimination under the ADA if they fail to make reasonable accommodations to the known physical or mental limitations of an otherwise qualified individual with a disability who is an applicant or employee.

Liability Trigger: Under the ADA, an employee must begin the accommodation process by informing his employer of his disability. It is key that the employer must know of the disability, or else they cannot be held responsible for any failure to provide a reasonable accommodation. Once the employee informs his employer of his disability, the employer's potential liability is triggered for failure to provide reasonable accommodations.

How to proceed: Once the employer is informed of the employee's disability, the employer must engage with the employee in an "interactive process" to determine the appropriate accommodation under the circumstances. The interactive process requires that the employer and disabled employee work together to identify the employee's precise limitations and discuss accommodations which might enable the employee to continue working.

How Far: In Gile v. United Airlines, Inc., the Court held that an employer is not obligated to provide the employee the accommodation he requests or prefers, the employer need only provide some reasonable accommodation. 95 F.3d 492, 500 (7th Cir. 1996). An employer can satisfy the ADA reasonable accommodation requirement by choosing an effective accommodation that is less costly or easier to provide than what the employee requests.

Vacant Positions: If the employee is unable to perform his job, with or without accommodation, the employer must consider reassignment as one form of accommodation. In E.E.O.C. v. United Airlines, Inc., a recent case analyzing the ADA, the Court stated that the ADA includes "reassignment to a vacant position" as a possible "reasonable accommodation" for disabled employees. 693 F.3d 760, 762 (7th Cir. 2012). Importantly, the Court held that the "ADA requires employers to appoint disabled employees to vacant positions, provided that such accommodations would not create an undue hardship (or run afoul of a collective bargaining agreement)."

Note that an employer may be obligated to reassign a disabled employee, but only to vacant positions. An employer is not required to bump other employees to create a vacancy so as to be able to reassign the disabled employee. Further, the employer is not obligated to create a "new" position for the disable employee.

Exception: Discrimination under the ADA can comprise of an employer not making reasonable accommodations to the known physical or mental limitations of an otherwise qualified individual with a disability who is an applicant or employee, unless such covered entity can demonstrate that the accommodation would impose an undue hardship on the operations of the business of such covered entity. Undue hardship is typically equated to "unduly costly."

Burden: The burden is on the plaintiff to show that the proposed accommodation would be (1) effective in allowing him to perform the essential functions of a job, and (2) in that the costs to the employer do not greatly outweigh the benefits to the employer and employee. The burden of demonstrating that providing the accommodation would cause undue hardship is on the employer.

Examples: In Hammel v. Eau Galle Cheese Factory, the Court held that enlisting another employee to assist a disabled employee in performing essential functions of his job was an unreasonable accommodation request. 407 F.3d 852, 867 (7th Cir. 2005). In Malabarba v. Chicago Tribune Co., permanently converting a full-time position into a part-time position was held to be an unreasonable accommodation request. 149 F.3d 690, 696 (7th Cir. 1998). Finally, in Nowak v. St. Rita High School, the Court held that allowing an employee with a prolonged illness indefinite leave of absence was an unreasonable accommodation request. 142 F.3d 999, 1004 (7th Cir. 1998).