Published on February 28, 2013
By Richard Lentini
State and federal laws against discrimination generally prohibit treating an individual differently because they are in a protected class (age, race, sex, religion, disability, etc.). However, when dealing with an employee with a disability, the law actually requires employers to show them a preference to provide them with an accommodation that may not be available to other employees without the same disability. Moreover, when and what sort of accommodation is required can be very tricky questions not easily answered. Every case is different, and the law requires an individualized approach for each employee. The following are some explanations of the applicable laws and some guidelines for reasonably accommodating employees with disabilities.
What is a Disability?
The Federal Americans with Disabilities Act defines an individual with a disability as one who:
- Has a physical or mental impairment that substantially limits one or more major life activities (caring for self, walking, seeing, hearing, speaking, working, etc.)
- Has a record of such an impairment; or
- Is regarded as having such an impairment
There are exclusions, which include homosexuality, bisexuality, gender identity disorders, sexual behavior disorders, compulsive gamblers, kleptomaniacs, pyromaniacs, and those currently engaged in the use of illegal drugs. Those who are participating or have participated in a supervised drug rehabilitation program (or have otherwise been successfully rehabilitated) are protected. Washington Law Against Discrimination
The Washington Law Against Discrimination states that a disability is the presence of a sensory, mental or physical condition which is:
- Medically cognizable
- Exists as a record or history; or
- Is perceived to exist, whether or not it exists in fact
When Does an Employer Have to Accommodate?
The circumstances where employers are required to accommodate qualified disabilities include:
- When the employer is aware of a disability (abnormal condition)
- The employee needs accommodation to perform the essential functions of the job
- The employer is obligated to take the initiative to address the issue of accommodation
- Employee need not make a formal or written request for accommodation
- Before hiring – may not refuse to hire because of a disability which requires accommodation
Employers might ask under-performing employees if they are having any problems performing their job that you should know about. Engage in a conversation with your employees and find a solution that benefits all sides. How Does an Employer Decide How to Accommodate? Employers may also seek an interactive exchange with their employee. The interactive exchange process will inquire to determine the nature and extent of the disability and its impact on job duties:
- Involves employer, employee, and physician
- Open exchange of information relating to disability, job duties and functions, and accommodations
- Employer may require a reasonable documentation and/or a medical examination, if insufficient information is provided
- Employer may not seek information not pertinent to the condition or accommodation
What is the Scope of the Duty?
Employers should take reasonable steps to accommodate the employee’s limitations to enable them to perform the essential functions of the job. A good faith effort to provide reasonable accommodation is at least a defense to punitive and certain compensatory damages. What is Reasonable Accommodation? Any accommodation that does not impose an “undue hardship” on the conduct of the employer’s business is considered reasonable accommodation. An accommodation imposes undue hardship if it presents a significant difficulty or expense. Considerations include:
- The nature and cost
- Employer’s financial resources
- Number of persons employed
- Impact upon operations
- Size of employer’s business
- Number, type and location of facilities
- Type of operation, including the composition, structure and functions of workforce
- Geographic, administrative and fiscal considerations
Duty is limited to accommodations necessary to enable the employee to perform the essential functions of the job. An employer may choose among reasonable accommodation options, as long as it is effective. An employee who refuses an offer of effective reasonable accommodation is no longer a qualified person with a disability and thus not entitled to further accommodation. How does an Employer Accommodate? Employers can provide modifications that enable the employee to perform their regular job, such as:
- Modifying the facility
- Restructuring the job
- Modifying the work schedule or other conditions
- Modifying or acquiring equipment or devices
- Adjusting or modifying applications, examinations, training materials, or policies
- Providing readers or interpreters
Employers might also accommodate employees by reassigning them to other jobs. In such circumstances:
- Take initiative in finding another job
- Notify employee of openings
- Assist with application
- Provide capabilities testing and training
Modifications should allow an employee to enjoy equal benefits and privileges of employment. Informing the employee of openings for which they are qualified is also important after discharge.
What is NOT a Reasonable Accommodation?
While there are many considerations for accommodating qualified employees, employers do not need to:
- Eliminate essential functions
- Lower performance standards
- Offer the precise accommodation requested
- Displace another worker
- Create a new job
- Prefer employee with disability over a more qualified applicant
- Provide accommodation that is not medically necessary (employee’s perception)
If you have questions about whether or how to reasonably accommodate an employee’s physical or mental condition, our employment lawyers at Ryan Swanson are here to help.
Richard P. Lentini is an attorney at Ryan, Swanson & Cleveland, PLLC and is the chair of the Employment Rights, Benefits & Labor Group. For more information, please contact him at email@example.com or visit www.ryanswansonlaw.com.
This article is to advise you of recent developments in the law. Because each situation is different, this information is intended for general information purposes only and is not intended to provide legal advice on any specific facts and circumstances.
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