Accommodations

Employment discrimination is prohibited against “qualified individuals with disabilities.” This includes applicants for employment and employees. Persons discriminated against because they have a known association or relationship with an individual with a disability are also protected.

An individual is considered to have a “disability” if s/he has a physical or mental impairment that substantially limits one or more major life activities, has a record of such an impairment, or is regarded as having such an impairment.

The claimed impairment must affect major life activities such as seeing, hearing, speaking, walking, breathing, performing manual tasks, learning, caring for oneself, and working. An individual with epilepsy, paralysis, HIV infection, AIDS, a substantial hearing or visual impairment, or a specific learning disability is covered, but an individual with a minor, non-chronic condition of short duration, such as a sprain, broken limb, or the flu, generally would not be covered

A qualified individual with a disability is a person who meets legitimate skill, experience, education or other requirements of an employment position that s/he holds or seeks, and who can perform the “essential functions” of the position with or without reasonable accommodation. A written job description will be considered as evidence of the essential functions of the job.

Requiring the ability to perform “essential” functions assures that an individual will not be considered unqualified simply because of inability to perform marginal or incidental job functions.

If the individual is qualified to perform the essential functions except for limitations caused by a disability, the employer must consider whether the individual could perform these functions with a reasonable accommodation.

Reasonable accommodation is any modification or adjustment to a job or the work environment that will enable a qualified applicant or employee with a disability to participate in the application process or to perform essential functions of the job. The decision as to appropriate accommodation must be based on the particular facts of each case. An employer is not required to reallocate essential functions of a job as a reasonable accommodation.

Examples of reasonable accommodations include making existing facilities used by employees readily accessible to and usable by an individual with a disability; restructuring a job; modifying work schedules; or acquiring or modifying equipment. Reasonable accommodation may also include reassigning a current employee to a vacant position for which the individual is qualified, if the person is unable to do the original job because of a disability even with an accommodation.

The employer is only required to accommodate a “known” disability of a qualified applicant or employee. The requirement is generally triggered by a request from an individual with a disability. Accommodations must be made on an individual basis, because the nature and extent of a disabling condition and the requirements of a job will vary in each case.

The person requesting the accommodation must be otherwise qualified and the disability must be known to the employer. In addition, an employer is not required to make an accommodation if it would impose an “undue hardship” on the operation of the employer’s business. Undue hardship is defined as “an action requiring significant difficulty or expense” when considered in light of a number of factors.

The ADA permits employers to establish qualification standards that will exclude individuals who pose a direct threat – a significant risk of substantial harm – to the health and safety of the individual of others, if that risk cannot be eliminated or reduced below the level of a “direct threat” by reasonable accommodation. The level of threat must be supported by objective and supportable evidence.

Alcoholism is a recognized disability under the ADA, however, an employer can discipline, discharge or deny employment to an alcoholic whose use of alcohol adversely affects job performance or conduct. An employer also may prohibit the use of alcohol in the workplace and can require that employees not be under the influence of alcohol. Individuals who currently engage in the illegal use of drugs are specifically excluded from the definition of a “qualified person with a disability,” when the employer takes action on the basis of their drug use.

The employer is not required to provide the requested accommodation, only a reasonable accommodation. The principle test is one of effectiveness. An “Interactive Dialogue” is a meeting between the qualified person with a documented disability and the employer to determine the accommodations that will best suit each situation.