I recently attended a webinar on the Americans with Disabilities Act (ADA), sponsored by the American Bar Association. The primary points made during the webinar were
- The amendments to the ADA passed in 2008 were designed to relax the definition of “disability.” Cases brought under the ADA should now focus more on whether the employer discriminated against the employee, and less on whether the employee is disabled.
- Employers should be able to justify their attempts to accommodate the employee. An employer should “stop; think; justify” any actions vis-à-vis a disabled employee. This applies both to determining the essential functions of the job and to the discussion of reasonable accommodations to permit the employee to perform the essential functions.
One of the speakers during the webinar was Chai R. Feldblum, Esq., a commissioner with the Equal Employment Opportunity Commission (EEOC). Commissioner Feldblum stressed that the EEOC does not want to preclude employers from getting their work done, nor reduce business productivity. If an employer has its job descriptions in place that list the essential functions, and if the employer engages in an interactive dialogue with the disabled employee, then determining whether a reasonable accommodation is possible should be straight-forward.
My experience has been that the reasonable accommodation process is not as easy as Commissioner Feldblum makes it sound. Ideally, a reasonable accommodation can be found quickly, but often, the process is inexact and time-consuming.
Here are some of the problems encountered in finding reasonable accommodations:
First, there is the problem of keeping job descriptions up to date. In today’s workplace, jobs change quickly. In a large company, it can be a full-time job for several employees to keep job descriptions updated. And writing job descriptions is probably not the most efficient use of employees’ time – companies that seek to be nimble may not want to slow down to create job descriptions that will be out of date by the time they’re written. Requiring that job description be written is one of the reasons lawyers and HR professionals get a bad name among managers, even when they point to the ADA as the reason for the requirement.
Second, while it is easy for an employer to say that a job function is “essential,” there are always other ways to get the work done. Since one possible reasonable accommodation is to “restructure” a job, an employer is always subject to being second-guessed on whether a particular job function is “essential” and need not be eliminated, or whether it is non-essential and the employer will have to find another way to get the function done, or do without the function.
Third, while the employer can set both qualitative and quantitative standards for acceptable performance, these standards are also subject to debate during the reasonable accommodation process. If a leave of absence or a reduced schedule is a reasonable accommodation, then a production standard may need to be reduced along with the employee’s schedule. How then will the employer get enough production out to satisfy its customers?
Fourth, the necessary accommodations of a disabled employee sometimes evolve over time, or require a good deal of experimenting to see what works and what doesn’t. The attempts at accommodation may even be unsuccessful in the end, resulting in frustration for the disabled individual, as well as for his or her managers and co-workers. Sometimes the employee isn’t ready to stop working, even after many accommodations have been unable to get the employee back to a productive state.
These problems don’t even get to the issues that arise when the employee’s request for an accommodation is less than clear, when the employee doesn’t know what accommodation they think might work, or when other employees become upset at having their jobs changed because the employer is accommodating someone else. For more information about the ADA, see the EEOC’s website on disability discrimination
The purpose behind the ADA is laudable. The practice is often messy. Even employers operating in good faith can find themselves in expensive litigation. Who is to say what is “reasonable”? Even years of attempted accommodations may not be enough to satisfy the EEOC or a judge or jury.
What have your experiences with the ADA been?