The ADA and "Reasonable Accommodation"

In 1990, the Americans with Disabilities Act (ADA) was passed with the intent to remedy discrimination against the disabled, especially in employment. The ADA defines disability as a "physical or mental impairment" that substantially limits one or more "major life activities," i.e. reading, walking, lifting, learning, hearing, etc.

Ability to Perform the "Essential Functions" of the Position
An initial inquiry is whether the candidate or employee can perform the "essential functions" of the job, with or without accommodations. "Essential functions" are those the employee must be able to satisfactorily perform for that position, as opposed to "marginal functions," which may be delegated to another worker. Common factors used to evaluate whether a function is "essential" include:

• The employer's judgment and written job descriptions in advertisements, etc.
• Whether the job exists to perform that particular function
• The number of employees who can perform the function
• Whether the function is specialized and the employee was specifically hired to perform that function
• Time spent by the employee performing the function
• The consequences of the employee not performing the function

Disability and the Right to "Reasonable Accommodation"
At times, a disability may be obvious in an employee or candidate. For example, the disability may exist when the employee is interviewed and hired, or arise while she is employed, due to an accident, illness, or other event. When the disability is not obvious, however, the employee is obligated to inform the employer of its existence and request "reasonable accommodation." The employer is entitled to verification of the disability.

Once the disability is established, the employer must provide the employee with "reasonable accommodation," if requested. However, the employer need not provide "reasonable accommodation" if it would cause the employer to suffer an "undue hardship" or pose a direct threat of harm to others.

"Undue hardship" may exist when the accommodation is unduly costly, extensive, substantial, or disruptive. It depends on the facts and circumstances of each case and will therefore vary. An "undue hardship" for one employer may not be so for another.

Types of "Reasonable Accommodations"
"Reasonable accommodations" consist of measures an employer takes to ensure equal opportunity for a disabled person. They may be employed either in the application process or to enable a disabled employee to perform essential job functions and enjoy equal benefits and privileges. Employers are encouraged to consult with the disabled person to decide on the best and most "reasonable" accommodations. The employer is entitled to make the final selections, however, so long as they are reasonable and effective.

The nature and extent of accommodations vary with each case, but may include:

• Adjusting or modifying entrance examinations or training
• Making the workplace accessible and usable (adding ramps, special parking, etc.)
• Purchasing new, or modifying existing, equipment and devices
• Modifying the job, such as by delegating "marginal functions" to other workers
• Providing another person to read or interpret for the disabled employee
• Reassignment to a vacant position, if accommodation is not possible for the present position and the employee can perform the new job
• Permitting modified work schedules for flexibility in hours or the work week
• Flexibility regarding leave, whether accrued, advance, or leave without pay

Ammendments

NELA Statement on the ADA Ammendments Act

Summary of the ADA Ammendments Act

Historical Changes to ADA:
On September 17, 2008, the House approved the new Americans with Disabilities Amendments Act by a substantial margin. The amendments, which reflect a compromise reached by employer/business groups and the disability rights community, was unanimously passed by the Senate on September 11, 2008.

Since it was enacted in 1990, the ADA’s impact on the workplace has been weakened by various Court decisions. Lawyers for employees are hoping that the ADA Amendment Act will reverse such court decisions and restore the original intent of the ADA.

While Congress has been contemplating changes to the ADA for several years, the ADA Amendment Act will become law soon. These changes may have a dramatic impact on the workplace – considering the number of employees who may be considered disabled under the law. To see the actual amendments go to the EEOC site provided.

http://www.eeoc.gov/ada/amendments_notice.html

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