I. INTRODUCTION
The Americans with Disabilities Act (ADA) was signed into law on July 26, 1990, and was enacted to protect the employment and accessibility rights of the disabled. The law is a civil rights act that prohibits businesses, including banks, from discriminating against qualified people with disabilities in employment, public services and transportation, access to public accommodations and services and telecommunication services. Most businesses are affected by the ADA and are required to take steps to comply.
The two sections of the law which affect NBA members directly are Title I which provides that an employer may not discriminate against any qualified individual with a disability in regard to any term, condition or privilege of employment, and Title III which deals with access to places of public accommodations by persons with disabilities and removal of barriers to disabled persons’ enjoyment of the goods, services and facilities of places of public accommodation. This article discusses only the Title I provisions that relate to employment matters. Please note that there are few “bright line” rules for compliance. The definitions and terms found in the ADA lead to the conclusion that compliance and enforcement efforts will be determined on a case-by-case basis. What may be sufficient compliance efforts for one bank may not be for another, depending upon the overall facts of the case.
II. ADA UPDATES
A. U.S. Supreme Court Decisions
Since A Technical Assistance Manual on the Employment Provisions (Title I) of the Americans with Disabilities Act, hereafter “the Manual” was published, the U.S. Supreme Court has issued rulings that must be considered by all employers subject to the ADA, including banks.
The Supreme Court has ruled that an accommodation is “reasonable” if it “seems reasonable on its face, i.e., ordinarily or in the run of cases.” U.S. Airways, Inc. v. Barnett, 535 U.S. 391, 122 S. Ct. 1516 (2002). The Court also ruled in Barnett that while it will generally be “unreasonable” for an employer to violate a seniority system in order to provide a reassignment, there may be “special circumstances” that would nevertheless make it “reasonable” to provide such an accommodation.
As a result of Barnett, a portion of the Manual regarding the meaning of “reasonable accommodation,” has been superseded in part. The Manual’s guidance on potential conflicts between reassignment and seniority systems has been superseded.
B. New Freedom Initiative
On February 1, 2001, President George W. Bush announced his new New Freedom Initiative to promote the full integration of people with disabilities into all aspects of American life. The goals of this comprehensive plan include expanding educational and employment opportunities; increasing access to assistive technologies and public accommodations; and providing accessible transportation and housing options for individuals with disabilities. The New Freedom Initiative focuses on outreach efforts and training programs in order to educate the public and prevent disability discrimination. Information concerning the New Freedom Initiative outreach and training programs are available on the EEOC Website at: www.eeoc.gov.
C. ADA Amendments Act of 2008
The ADA Amendments Act of 2008 (ADAAA) passed by Congress and which went into effect on January 1, 2009, expands the number of individuals covered by the ADA. The ADAAA was passed, in part, to address court decisions that have “created an inappropriately high level of limitation necessary to obtain coverage under the ADA.” Congress’ intent in adopting the ADAAA is clear “that the question of whether an individual’s impairment is a disability under the ADA should not demand extensive analysis” and instead courts should give primary attention to “whether employers have complied with their obligations under the ADA.”
Highlights of the ADAAA include: (1) mitigating measures are no longer to be taken into account by the courts in determining if an individual has a “disability”; (2) an impairment that is episodic or in remission is a disability if it would substantially limit a major life activity when active; (3) an impairment that substantially limits one major life activity need not limit other major life activities to be a disability; and (4) expansion of the list of “major life activities,” which was previously included only in the EEOC’s regulations.
The new law is specifically designed to overturn the Supreme Court’s Sutton decision. Sutton v. United Airlines held that individuals who are able to mitigate the symptoms of their physical or mental impairment with medication or assistive devices are not individuals with a disability. The ADAAA, in part, reverses that decision and prohibits courts from taking into consideration mitigating measures such as medication or learned behavioral or adaptive neurological modifications. The law does, however, make clear that courts may still take into account mitigating measures of ordinary eyeglasses and contact lenses.
The ADAAA also overturns the Supreme Court’s decision in Toyota Manufacturing, Kentucky, Inc. v. Williams. In Toyota, the Court held that the ADA needed to be “interpreted strictly,” individuals faced a “demanding standard for qualifying as disabled,” and “major life activities” included only those activities that are “of central importance to daily life.” While the amended act retains the “substantially limited” language of the ADA, it directs the EEOC to revise its current ADA regulations to reflect
Congress’ intention that impairments that “significantly restrict” a major life activity constitute disabilities. The amendments also include a list of “major life activities” and “major bodily functions,” which includes activities such as “bending,” “concentrating,” and “thinking.” These revisions are likely to increase the number of individuals considered to have a disability.
The new law clarifies that employers need only provide a reasonable accommodation to an individual who has an actual disability eliminating the argument that employers may need to accommodate “perceived” disabilities. It also includes a “fundamental alteration” affirmative defense providing that an employer need not grant an accommodation if it would result in fundamentally altering the nature of the goods, services, facilities, privileges, advantages, or accommodations involved.
III. TITLE I – “EMPLOYMENT”
A. Coverage and Effective Dates
The employment provisions of the ADA apply to private employers, state and local governments, employment agencies and labor unions. Employers with twenty-five or more employees were covered commencing July 26, 1992. Employers with fifteen or more employees are covered beginning July 26, 1994.
In counting employees, you must include all employees, including part-time employees, who worked for you each working day in each of twenty or more calendar weeks in the current or preceding calendar year.
B. Who is Protected
No covered employer may discriminate against a qualified individual with a disability because of the disability of such individual in regard to job application procedures, hiring, advancement or discharge of employees, employee compensation, job training or other terms, conditions and privileges of employment.
The first critical determination to be made in complying with the ADA employment provisions is defining who is protected by the Act. Under the ADA, the protected class includes “people with disabilities” and as a result the definition of “disability” become significant. Under the ADA, a person is disabled if he or she: (1) has a physical or mental impairment that “substantially” limits one or more “major life activities”; (2) has a record of such an impairment; or (3) is regarded as having such an impairment (even is he or she does not, in fact, have it). In addition, pursuant to the ADAAA, the EEOC has been directed by congress to revise its ADA regulations to reflect that impairments that “significantly restrict” a major life activity constitute disabilities.
1. Physical or Mental Impairment
The first prong of the “disability” definition prohibits discrimination against individuals who have a “physical or mental impairment” that substantially limits one or more major life activities. Under this requirement, the obviously long-recognized disabilities such as paralysis, loss of hearing, and/or vision, speech impediments, cancer, heart disease and epilepsy plainly are covered. Individuals with diabetes, AIDS, cancer, dyslexia, multiple sclerosis and cerebral palsy would likewise be entitled to the protections provided under the ADA.
Homosexuality and bisexuality are not impairments. As the term is used in the Act, “disability” does not include transvestitism, transsexualism, pedophilia, exhibitionism, voyeurism, gender identity disorders not resulting from physical impairments or other sexual disorders, compulsive gambling, kleptomania, pyromania, or psychoactive substance use disorders resulting from current illegal use of drugs.
The “major life activities” described above, including caring for one’s self, performing manual tasks, walking, seeing, hearing, speaking, breathing, learning, working and participating in community activities. The ADAAA amendments also include a list of “major life activities” and “major bodily functions,” which includes activities such as “bending,” “concentrating,” and “thinking.”
The phrase “physical or mental impairment” is defined in the regulation to include: (a) any physiological disorder or condition, cosmetic disfigurement or anatomical loss affecting one or more of the following body systems: neurological, musculoskeletal, special sense organs, respiratory (including speech organs), cardiovascular, reproductive, digestive, genitourinary, hemic and lymphatic, skin, and endocrine; or (b) any mental or physiological disorder, such as mental retardation, organic brain syndrome, emotional or mental illness and specific learning disabilities.
In other words, a physiological or mental disorder is an impairment. Physical characteristics (e.g., eye or hair color, left handedness, normal weight or height) are not impairments. Pregnancy or a predisposition to a certain disease is a physical condition that is not the result of a physiological disorder. Poor judgment, quick temper, irresponsible behavior or other like personality traits are not in themselves impairments. Impairments do not include environmental, cultural or economic disadvantages (e.g., lack of education, prison record). Note that “stress” and “depression” have a potential to be considered impairments, if the conditions resulted from documented physiological or mental disorders.
For a person to be disabled under the Act, the impairment must substantially limit one or more of the major life activities of the individual. The regulation defines “substantially limits” as (a) unable to perform a major life activity that the average person in the general population can perform; or (b) significantly restricted as to the condition, manner or duration under which an individual can perform a particular major life activity as compared to the condition, manner or duration under which the average person in the general population can perform that same major life activity. Substantial limitation factors include: (a) the nature and severity of the impairment; (b) the duration or expected duration of the impairment; and(c) the permanent or long term impact, or the expected permanent or long term impact of or resulting from the impairment.
The name of an impairment or condition is not what determines whether a person is afforded ADA protection, but the effect of an impairment or condition on the life of an individual. Whether a person is substantially limited must be based on the effect of an impairment on that person’s life activities.
At times, a person may have more than one impairment, any of which by itself will substantially limit a major life activity, but the combination having that effect. In such cases, the person has a disability. Also, temporary, non-chronic impairments that do not last long and have little or no long term impact are generally not considered disabilities.
2. Having a Record of an Impairment
The second prong of the “disability” definition prohibits discrimination against individuals who have a record of some physical or mental impairment. This requirement prevents employers from relying on unfounded fears that the impairment will recur. For example, an individual who has recovered from a heart condition, or who has a history of cancer in the family, cannot be treated differently because of concerns about these conditions. Rehabilitated drug users and alcoholics are protected under this provision.
3. Being Regarded as Having an Impairment
The third prong of the “disability” definition requires employers to treat people with disabilities based upon legitimate medical judgments and not upon misinformation or misapprehensions. An employer cannot refuse to hire someone because of concerns about the negative reaction of others. For example, even if an employer does not regard an HIV-positive employee as disabled, a violation of the Act will occur if an employment decision is based on the belief that customers or other employees will react negatively because of this perceived disability.
C. A Qualified Individual with a Disability
Title I of the ADA prohibits employment discrimination against “qualified individuals with disabilities.” A “qualified individual with a disability” is defined as someone who meets legitimate skill, experience, education, or other requirements of an employment position that he or she holds or seeks, and who can perform the “essential functions of the position with or without reasonable accommodation.”
The statutory language goes on to provide that “consideration shall be given to the employer’s judgment as to what functions of a job are essential, and if an employer has prepared a written description before advertising or interviewing applicants for the job, this description shall be considered evidence of the essential functions of the job.” The protections from discrimination under the ADA extend to all phases of employment, including but not limited to job application procedures, hiring, advancement, discharge, compensation, job training, and any other privileges of employment.
D. Identifying Essential Job Functions
The ADA precludes an employer from discriminating against a qualified individual with a disability who can perform the “essential function of the job.” To comply with these rules, the employer must determine: (1) the essential functions of the job; (2) whether a disabled person, with or without accommodation, is qualified to perform these duties; and (3) whether a reasonable accommodation can be made for a qualified individual, if needed. If a person is able to perform the “essential functions” of the job, either with or without reasonable accommodation, that person is a qualified individual with a disability.
This flowchart outlines the steps to be taken in complying with the general obligations under ADA's employment provisions.
The ADA defines “essential functions” as “a job’s fundamental duties . . . not those considered marginal.” The reasons that make job functions “essential” include:
1. The reason the position exists is to perform that function;
2. The limited number of employees available among whom the performance of that job function can be distributed; and/or
3. The function may be highly specialized so that the incumbent in the position is hired for his/her expertise or ability to perform the particular function.
The regulation lists seven types of evidence to help identify a job’s fundamental duties:
1. The employer’s judgment concerning which functions are essential;
2. Written job descriptions prepared before advertising or interviewing applicants for the job;
3. The amount of time spent on the job performing the functions;
4. The consequences of not requiring the incumbent to perform the functions;
5. The terms of a collective bargaining agreement;
6. The work experience of past incumbents in the job; and/or
7. The current work experience of incumbents in similar jobs.
E. Reasonable Accommodations
The Act imposes an affirmative duty on employers to provide “reasonable accommodations” for the known physical challenges of qualified persons, unless such accommodations would impose an undue hardship.
The Act defines “reasonable accommodation” as follows: (a) making existing facilities used by employee readily accessible to and usable by individuals with disabilities; and (b) job restructuring, part-time or modified work schedules, reassignment to a vacant position, acquisition or modification of equipment or devices, appropriate adjustments or modifications of examinations, training materials or policies, the provision of qualified readers or interpreters, and other similar accommodations for individuals with disabilities.
The foregoing list is not exhaustive, but is designed to provide general guidance as to the nature of the obligation of reasonable accommodation. Neither does it suggest that employers must take all of these actions in any particular case. Whether an accommodation is required in a given situation depends upon the particular facts of that case.
ADA regulations also define “reasonable accommodation” to include:
1. Modifications or adjustments to the work environment, or to the manner or circumstances under which the position held. . .is customarily performed, that enable a qualified individual with a disability to perform the essential functions of that position; or
2. Modifications or adjustments that enable a covered [employer’s] employee with a disability to enjoy equal benefits and privileges of employment as are enjoyed by its other similarly situated employees without disabilities.
In addition, an individual with a disability is not required to accept an accommodation, aid, service, opportunity or benefit which such individual chooses not to accept. But if the individual rejects a reasonable accommodation necessary to enable the individual to perform the essential functions of the position desired or held and cannot, as a result of that rejection, perform the essential functions of the position, the individual will not be considered a “qualified individual with a disability.”
With respect to reasonable accommodations:
1. It must only be provided for the KNOWN physical or mental disabilities of a qualified applicant.
2. Reasonable accommodation is not required if it would pose an undue hardship on the business.
3. Reasonable accommodation must be made on an ongoing basis. If the job changes or the disability changes, modifications or adjustments must be made, unless the change renders the individual unqualified for the job or unless the accommodation would pose an undue hardship to the business (an example of a change that would render the individual unqualified for the job would be an accident which renders a truck driver blind. The truck driver would no longer be able to perform the essential functions of his or her job).
4. Generally, the disabled individual has the obligation to ask for the accommodation. If paying for it would cause the business an undue hardship, the business must offer the individual the opportunity to pay the part of the cost that constitutes an undue hardship.
The regulations describe the process to determine reasonable accommodations. The employer should:
1. Analyze the particular job involved and determine its purpose and essential function;
2. Consult with the individual with the disability to ascertain the precise job-related limitations imposed by the individual’s disability and how those limitations could be overcome with the reasonable accommodations;
3. In consultation with the individual to be accommodated, identify potential accommodations and assess the effectiveness each would have in enabling the individual to perform the essential functions of the position; and'
4. Consider the preference of the individual to be accommodated and select and implement the accommodation that is most appropriate for both the employee and the employer.
The ADA Technical Assistance Manual gives basic principles of reasonable accommodation:
1. A reasonable accommodation must be an effective accommodation;
2. The reasonable accommodation obligation applies only to accommodations through employment related to a person’s disability;
3. A reasonable accommodation need not be the best accommodation available, as long as it is effective for the purpose;
4. An employer is not required to provide an accommodation that is primarily for personal use; and
5. The ADA’s requirements for certain types of adjustments and modifications to meet the reasonable accommodation obligation do not prevent an employer from providing accommodations beyond those required by the ADA.
F. Examples of Accommodations
1. Restructuring a Job
An example might be if a clerk must deliver mail to an office located in another facility and this is only a small portion of the job. A disabled individual who does not have a driver’s license still might be qualified as a clerk if the delivery task can be assigned to another employee.
2. Modifying Work Schedules
This situation might involve, as an example, providing a flexible work schedule for disabled personnel who must depend on public transportation in traveling to and from the job location.
3. Assistants and Modifications
An employer might provide qualified readers or interpreters or appropriately modifying examinations, training or other programs.
4. Reassignment
A scenario might be the reassignment of a current employee to a vacant position for which the individual is qualified, if the person becomes disabled and is unable to do the original job.
5. Aids and Modifications
Several examples might include: acquisition or modification of equipment or devices – purchase of items such as electronic visual aids; Braille materials; talking calculators; magnifiers; audio recordings; telephone handset amplifiers; telecommunication devices for a deaf persons; mechanical page turners; and raised or lowered furniture.
G. Supplying Appropriate Accommodations
Employers should consider two central issues when addressing the issue of appropriate accommodations for current or prospective employees.
First, assuming that all reasonable accommodations will be provided, is the applicant or employee minimally qualified for the position? Duty to make a reasonable accommodation applies only to individuals who, except for their disability, are “otherwise qualified” to perform the job. For example, if a blind applicant for an attorney position does not have a law degree, then he or she is not “otherwise qualified” and no duty to accommodate exists.
Second, the Act only requires that reasonable accommodations be made to the “known” physical or mental limitations of an otherwise qualified individual. Since the Act severely limits inquiries into disabilities, the duty to accommodate generally is triggered by a request from an employee or applicant.
An employer is required to advise employees and applicants of its willingness to make accommodations, and is required to post notices on the ADA. If a person with a known disability demonstrates a limited ability to perform his or her job, it may be appropriate for the employer to discuss the need for reasonable accommodation with the employee. In the absence of a request for an accommodation, however, it likely will be improper to force one on an employee.
If no accommodation is requested by the employee, there is no indication in the ADA that the employer must provide an accommodation and the employer is free to apply objective job performance standards. However, given the possibility that a performance-related discharge of a disabled employee could result in litigation, employers should document repeated discussions of the possibility of reasonable accommodation prior to taking any adverse performance-related action against a disabled employee.
In providing reasonable accommodations, employers may want to consider undertaking the following four-step process:
1. Identify Barriers to Performance
The process of accommodation begins with identifying barriers that make it difficult for a person with a disability to perform his or her job. This assessment should include identification of both essential and non-essential elements of the job (if non-essential elements pose insurmountable problems, they may be reassigned to other employees or eliminated).
2. Identify Possible Accommodations
All possible accommodations that will help solve the limitations should be identified. A number of sources may prove helpful in this process, including other employees or state vocational rehabilitation service agencies.
3. Assess Reasonableness
The “reasonableness” of each possible accommodation should be assessed in terms of effectiveness and equal opportunity. A reasonable accommodation should be effective in eliminating the limitation; it should be reliable and capable of being provided timely.
4. Choose an Appropriate Reasonable Accommodation
The Act does not specify whose choice, the employer’s or the employee’s, prevails among the available accommodations. It is not clear whether an employer may choose the less expensive or easier of two accommodations, or whether the expressed choice of the applicant or employee for a particular accommodation must be invoked. Employers should be entitled to insist upon an effective but less expensive accommodation, however, employers should document carefully the reasons why a particular accommodation was chosen.
H. Undue Hardship
Employers are excused from providing reasonable accommodations if to do so would pose an “undue hardship” on the business. Undue hardship exists when the accommodation is “unduly costly, extensive, substantial, disruptive, or would fundamentally alter the nature or operation of the business.”
The main factors relating to the determination of undue hardship that are listed in Title I are as follows:
1. The nature and cost of the accommodation;
2. The financial resources of the facility or facilities making the accommodation, the number of employees at the facility and the effect on the facility’s expense. This test would apply to a specific branch office;
3. The overall financial resources of the business, size, number of employees and type and location of facilities. Under this test, consider the entire organization - not just a single branch office; and
4. The type of operation of the covered employer, including the composition, structure, and functions of the work force of such entity, the geographic separateness, the administrative or fiscal relationship of the facility in question to the covered employer.
If an employer determines that an accommodation is not “reasonable” because it poses an “undue hardship”, the employer must advise the employee of the reason for rejecting the potential accommodation. If the employee chooses to pay for all or part of the accommodation, the employer must provide the opportunity for its use (e.g., if the job requires a reader or interpreter, and the employer shows that it reasonably cannot afford a reader or interpreter, the employee still must be offered the option of providing a reader or interpreter). In addition, if the hardship issue involves cost, the employer remains obligated to pay for that part of the accommodation that is reasonable.
An undue hardship cannot be claimed just because the cost of an accommodation is high in relation to an employee’s wage or salary. It is clear from the legislative intent that the focus for determining undue hardship should be the resources available to the employer.
The ADA regulations open up another issue, namely: “The impact of the accommodation upon the operation of the facility, including the impact on the ability of other employees to perform their duties and the impact on the facility’s ability to conduct business.”
I. Direct Threat
If an employee poses a “direct threat” to the health or safety of the employee or others, an employer need not accommodate the employee. “Direct threat” is a significant risk to the health or safety of others that cannot be eliminated by reasonable accommodation. Proving “direct threat” is the employer’s burden. The regulatory factors to consider include:
1. The duration of the risk;
2. The nature and severity of the potential harm;
3. The likelihood that the potential harm will occur; and
4. The imminence of the potential harm.
The Technical Assistance Manual outlines very specific and stringent requirements that the employer must be prepared to show:
1. There is significant risk of substantial harm;
2. The specific risk must be identified;
3. The risk is current and not speculative or remote;
4. The assessment of risk must be based on objective medical or other factual evidence regarding a particular individual; and
5. Even if a genuine significant risk of substantial harm exists, the employer must consider whether the risk can be eliminated or reduced below the level of a “direct threat” by reasonable accommodations.
J. Medical Examinations and Inquiries
The ADA also imposes restrictions on employers regarding inquiries into employee disabilities and the use of medical examinations. The general prohibition against discrimination applies equally to medical examinations and inquiries.
1. Pre-Employment Examinations
The ADA prohibits requests for an applicant’s physical or mental condition in an employment application form or in the course of a job interview. You may inquire only about the applicant’s ability to perform specific job-related functions. For this reason, you must know the specific position that the applicant seeks before making any such inquiries.
You may make pre-employment inquiries about the ability of an applicant to perform job-related functions or may ask an applicant to describe or to demonstrate how, with or without reasonable accommodation, the applicant will be able to perform job-related functions. According to the ADA Technical Assistance Manual, requirements for inquiries during the hiring process are as follows:
a. Before Making a Job Offer
An employer:
b. After Making a Conditional Job Offer and Before an Applicant Starts Work An employer may conduct a medical examination or ask health-related questions, provided that all candidates receiving a conditional job offer in the same job category are required to take the same examination or respond to the same inquiries.
2. Post-Offer Medical Examinations
An employer may not conduct a medical examination of a job applicant, but an employer is granted greater latitude in examining the physical and mental capacity of an individual after a conditional job offer has been extended to the individual. An offer of employment may be conditioned upon the results of a medical examination, if the employer meets the following requirements.
a. Nondiscriminatory Use You can request a medical examination ONLY if you request a medical examination for all similarly situated candidates.
b. Confidentiality Information obtained during the medical examination or history of applicant must be collected and maintained on separate forms and in medical files which are kept separate from the person’s general personnel files.
c. Use Medical examinations may not be used to deny employment based on an inability to perform a non-essential job function. The examination may not result in rejection unless it shows that the disability would create a “high probability of substantial harm” in the particular job function. Absent a direct threat to the health and safety of others, it is improper to limit the employment opportunities of the applicant or employee.
d. Job Related and Consistent with Business Necessity The results of pre-employment medical examinations can only be used by the employer upon a demonstration that the applicant thereby does not meet qualification standards that are job-related and consistent with business necessity.
e. Illegal Drugs and Alcohol The ADA provides that anyone, disabled or not, may be excluded from employment because of his or her current illegal use of drugs. Thus, an employer need not provide a rehabilitation program as a reasonable accommodation for a current drug user if that person demonstrates performance problems. However, an addict who formerly used drugs, but is not a current user, or an alcoholic, is protected by the Act. The Act also protects individuals who are erroneously regarded as engaging in the use of alcohol or illegal drugs, but is not in fact engaging in such use.
K. Activities that Violate the ADA
In addition to its broad prohibitions against discrimination, the ADA contains a number of specific prohibitions that expand and clarify its coverage. The eight specific types of activities that violate the ADA are as follows:
1. Limiting, segregating, or classifying a job applicant or employee in a way that adversely affects the opportunities or status of such persons because of his or her disability. A bank cannot segregate an employee with AIDS by providing a separate work area away from other employees or deny an individual with epilepsy from a promotion based upon general statistics regarding the safety record of individuals suffering from epilepsy.
2. Participating in a contractual or other arrangement or relationship that has the effect of discriminating. An employer may not instruct an employment agency through which employee referrals are obtained to weed out otherwise qualified disabled candidates.
3. Utilizing standards, criteria, or methods of administration that (a) have the effect of discriminating on the basis of disability; or (b) perpetuate such discrimination. Aptitude tests that tend to reject a candidate because of a disability cannot be used to screen applicants for jobs unless it can be demonstrated that a minimum aptitude is necessary to perform an essential job function.
4. Excluding or otherwise denying equal jobs or benefits to a qualified individual because of the known disability of a person with whom the qualified individual has a relationship or association. An applicant or employee may not be denied an employment position based upon the assumption that he or she will have to miss work or frequently leave work early in order to care for a disabled spouse (however, the employee will be held to same attendance standards as other employees and may be dismissed for violating the employer’s policy regarding attendance or tardiness even if the reason for absence is to care for the disabled spouse).
5. Failure to make reasonable accommodation for the known physical or mental limitation of an otherwise qualified applicant or employee unless the employer can demonstrate that such accommodation would cause “undue hardship.” If a disabled employee requires a reader, the accommodation must be made if it does not cause undue hardship on the business. However, even if the accommodation results in “undue hardship” the accommodation must be made if the employee is willing to make his or her own arrangements for obtaining the accommodations.
6. Denying employment opportunities to an otherwise qualified person with a disability if such denial is based on the need to make reasonable accommodations. A bank may not deny an applicant an employment opportunity in order to avoid building a ramp to the customer service platform.
7. Using qualification standards, employment tests, or other selection criteria that screen out or tend to screen out qualified individuals with a disability unless the test or selection criteria is shown to be job related and is consistent with business necessity.
8. Failing to select and administer tests in the most effective manner so as to ensure that such tests measure the skill and aptitude of the person with a disability rather than reflecting such person’s impairments. Banks may not require a dyslexic applicant to take a written test unless it can be shown that the ability to read the test represents an essential job function. If the ability to read does not represent an essential job function, the employer may have to make a reasonable accommodation by providing the applicant with a reader to assist in completing the test.
L. Employee Benefits
ADA regulations provide that an insurer, hospital, medical service company or health maintenance organization may underwrite risks, classify risks or administer risks based upon state insurance laws. Unless used to evade the purposes of the ADA, this means that a business may establish, sponsor, observe or administer the terms of a benefit plan based upon underwriting risks, classifying risks or administering risks so long as the plan is consistent with state insurance laws.
EEOC guidelines were issued June 8, 1993 that address ADA’s application to disability-based distinctions and employer-provided health insurance. The guidelines give EEOC investigators specific instructions in determining whether an insurance term, provision, or condition single out a particular disability, discrete group of disabilities or disability in general. An employer is given the burden of proofthat the health insurance plan is consistent with state law or that it is a bona fide self-insurance plan and that the disability-based distinction is not a subterfuge to evade the ADA.
M. Action Checklist
In complying with the employment provisions of the ADA, the following checklist may be helpful:
1. Review your company’s job descriptions. Rewrite job descriptions and job standards to make them specific and unambiguous.
2. Identify job duties that cannot be performed by persons which disabilities. Decide if these functions are essential to the position. Failing to identify essential functions invites litigation.
3. Review all employment application forms and materials. All hiring materials, including those only for staff use, should be revised to eliminate all references to an applicant’s medical history, physical or mental disabilities, Workers’ Compensation history, a physical appearance. Still, a job application form may ask applicants to identify any reason why they cannot perform an essential function of the job.
4. Review job ads. Help wanted advertisements should not refer to nonessential or marginal requirements.
5. Focus job interviews on function-related questions. Asking if an applicant can lift more than 60 pounds where a job requires heavy lifting is okay.
6. Do not use visual impressions of an applicant’s disability. Recording these impressions on the applicant’s file or using a special code to designate a disability could lead to discrimination charges.
7. Do not make medical judgments. Consult a doctor – or other experts – to determine whether a disabled applicant can perform the essential functions of a job.
8. Review employment tests. Employment tests and testing procedures must be altered to accommodate disabled applicants. Employers may have to provide readers, create Braille forms, and adjust testing procedures or locations to assist these applicants.
9. Be ready to work with the disabled applicant in accommodating the disability. This might include conducting a simulated test of an individual’s ability to do a task and to access work sites and public areas.
IV. ADA PERFORMANCE AND CONDUCT ISSUES
The Employment Opportunity Commission (EEOC) issued “a comprehensive question-and-answer guide” providing guidance for employers on how to address performance and conduct issues under the Americans with Disabilities Act (ADA).
While the EEOC question-and-answer guide does not have the force of law, it should serve as a useful resource for employers when addressing performance and conduct issues in the workplace.
The EEOC’s guidance consists of 30 questions and a series of examples on various ADA-related subjects, including: (a) performance standards; (b) conduct standards; (c) attendance issues; (d) dress codes; (e) alcoholism and illegal use of drugs; and (f) confidentiality issues. A summary of the most significant aspects of the EEOC guidance is set forth below:
A. Performance Standards
1. An employer may require an employee with a disability to meet the same production standards as a non-disabled employee in the same job. Lowering or changing a production standard because an employee cannot meet the standard due to a disability is not considered a reasonable accommodation. A reasonable accommodation, however, may be required to assist an employee in meeting a specific production standard.
2. Similarly, employers should evaluate disabled employees using the same evaluation criteria used for non-disabled employees.
3. If an employer gives a lower performance rating to an employee, and the employee responds by revealing she suffers from a disability that caused the performance problem, the employer is not required to rescind the rating. If the employee claims that her disability is the cause of the performance problem, the guidance suggests that the employer make clear to the employee the level of performance required and ask the employee why he/she believes the disability is affecting performance. If the employee does not ask for an accommodation, the employer may ask whether there is an accommodation that may help raise the employee’s performance level.
B. Conduct Standards
1. If an employee’s disability does not cause the misconduct, an employer may hold an individual to the same conduct standards that it applies to all other employees. In most cases, an employee’s disability will not be relevant to any conduct violations.
2. If an employee’s disability causes violation of a conduct rule, the employer may discipline the individual, but only if the conduct rule is job-related and consistent with business necessity, and other employees are held to the same standard. The ADA does not protect employees from the consequences of violating conduct requirements, even where the conduct is caused by the disability. Certain conduct standards that exist in all workplaces and cover all types of jobs will always meet this standard, such as prohibitions on violence, threats of violence, stealing, or destruction of property. Employers may also:
a. Prohibit insubordination towards supervisors and managers and require that employees show respect for, and deal appropriately with, clients and customers;
b. Prohibit inappropriate behavior between coworkers (e.g., employees may not yell, curse, shove, or make obscene gestures at work);
c. Prohibit employees from sending inappropriate or offensive e-mails (e.g., those containing profanity or messages that harass or threaten coworkers); using the Internet to access inappropriate Web sites (e.g., pornographic sites, sites exhibiting crude messages, etc.); and making excessive use of the employer’s computers and other equipment for purposes unrelated to work;
d. Require that employees observe safety and operational rules enacted to protect workers from dangers inherent in certain workplaces (e.g., factories with machinery with accessible moving parts); and
e. Prohibit drinking or illegal use of drugs in the workplace.
3. Although employers may not require employees to undergo treatment for a disability to comply with a conduct standard, if an employee does not take his or her medication or receive treatment and, as a result, cannot meet a conduct standard, even with a reasonable accommodation, the employer may take disciplinary action.
4. When an employee does not give notice of the need for accommodation until after a performance problem has occurred, reasonable accommodations does not require that the employer: (a) tolerate or excuse the poor performance; (b) withhold disciplinary action (including termination) warranted by the performance; (c) raise a performance rating; or (d) give an evaluation that does not reflect the employee’s actual performance.
C. Issues Related to Both Performance and Conduct Standards
1. It is inappropriate for an employer to focus discussion about a performance or conduct problem on an employee’s disability if the employee does not raise the issue. However, an employer may ask an employee with a known disability who is having performance or conduct problems if he or she needs a reasonable accommodation to improve performance or conduct. Alternatively, an employer may prefer to ask if some step(s) can be taken to enable the employee to improve his performance or conduct without mentioning accommodation or the employee’s disability.
2. An employer may need to provide a reasonable accommodation to enable an employee with a disability to understand the exact nature of any performance or conduct problem and to have a meaningful discussion with the employee about it. Similarly, an employer may need to provide reasonable accommodation to enable an employee with a disability to participate in a performance review. An employer may also need to provide a reasonable accommodation to enable an employee with a disability to participate in an investigation into misconduct whether as the subject of the investigation or a witness, to ensure the employee understands what is happening and can provide meaningful input.
D. Seeking Medical Information
1. The ADA permits an employer to request medical examination or request medical information when it is job-related and consistent with business necessity. Generally, this means that the employer has a reasonable belief, based on objective evidence, that an employee is unable to perform an essential function or will pose a “direct threat” because of the medical condition. The scope and manner of any inquiries or any medical examinations must be limited to the information necessary to determine if the employee is able to perform the essential functions of the job or can work without posing a direct threat to the safety of others.
2. Not all performance or misconduct will justify an employer’s request for medical information or a medical examination. An employer cannot require a medical examination solely because an employee’s behavior is annoying, inefficient, or otherwise unacceptable. In fact, there may be other reasons that an employee experiences performance or conduct problems that are unrelated to any medical condition such as insufficient knowledge, conflict with a supervisor or co-worker, lack of motivation or skills, a poor attitude, or non-medically personal problems.
3. The ADA permits but does not require an employer to seek medical information. An employer may choose to focus solely on the performance or conduct problems and take appropriate steps to address them.
E. Attendance Issues
1. Employees with disabilities are entitled to whatever forms of leave the employer generally provides to its employees. This means that when an employee with a disability seeks leave under an employer’s regular leave policies, he or she must meet any eligibility requirements for the leave that are imposed on all employees (e.g., only employees who have completed a probation program can be granted advanced leave). Similarly, an employer must provide employees with disabilities equal access to programs granting flexible work schedules and modified schedules. If an employee with a disability needs leave or a modified schedule beyond that provided for under an employer’s benefits program, the employer may have to grant the request as a reasonable accommodation if there is no undue hardship.
2. If requested, an employer may have to modify attendance policies as a reasonable accommodation, absent, undue hardship. Modifications may include allowing an employee to use accrued paid leave or unpaid leave, adjusting arrival or departure times (e.g., allowing an employee to work from 10:00 a.m. to 6:00 p.m. rather than the usual 9 a.m. to 5 p.m. schedule required of all other employees), or providing periodic breaks.
3. Employers need not completely exempt an employee from time attendance requirements, grant open-ended schedules or accept irregular, unreliable attendance. Employers generally do not have to accommodate repeated instances of tardiness or absenteeism that occur with some frequency, over an extended period of time and often without an advanced notice. Under these or similar circumstances, an employee who is chronically, frequently, and unpredictably absent may not be able to perform one or more essential functions of the job, or the employer may be able to demonstrate that any accommodation would impose an undue hardship, thus rendering the employee unqualified.
4. Although employers may have to grant extended medical leave as a reasonable accommodation, they have no obligation to provide leave of indefinite duration.
F. ADA No-Fault Attendance Policies
1. Introduction
In 2011, the U.S. Equal Employment Opportunity Commission entered into a Consent Decree with Verizon, pursuant to which Verizon paid $20 million for alleged violations of the Americans with Disabilities Act (ADA) for alleged violations of the ADA under its no-fault attendance policy.
Generally, under a no-fault attendance policy, employers disregard whether an absence is excused or unexcused. As a result, employers utilizing such a policy do not evaluate the reasons for absences, but rather focus on the quantity of absence for purposes of progressive discipline and discharge.
For many years, the Family and Medical Leave Act (FMLA) has prohibited charging of no-fault absences. Under the FMLA, even consistently enforced no-fault policies are subject to challenge if they adversely affect employees for taking FMLA qualifying time off. Accordingly, employers have exempted FMLA absences from their no-fault policies.
The ADA requires employers to “reasonably accommodate” disabilities that impair job effectiveness as long as the effective employees are capable of performing their essential job functions. Since reliable work attendance is generally presumed by employers to be essential, adapting a no-fault attendance policy to comply with the ADA may prove to be troublesome.
2. Verizon Consent Decree
The Verizon Consent Decree provides a template for employers to follow in determining whether an employee’s absence from the workplace should be “non chargeable.” Prior to disciplining or discharging an employee under a no-fault policy, employers should analyze whether absent employees: (a) have a mental or physical impairment that substantially limits one or more major life activities, as defined by the ADA; (b) are absent because of a disability; (c) have requested time off due to the disability; (d) absences are unreasonably unpredictable, repetitive, frequent or chronic in their absences; (e) require a definite or reasonably certain period of time off from work because of the disability; and (f) would pose significant difficulty or expense for the employer because of the absence.
It would appear that in order for an employer to maintain that attendance is essential, the employer will need to establish that one or more of the following exists: (1) the job requires specialization, or includes other circumstances that made it difficult to cover for absent employees; (2) the job requires performance at the employer’s place of business; (3) the requisite tasks are time sensitive; (4) performance requires teamwork; (5) absences will cause adverse impact to the operation; (6) there is a limited number of available employees to cover for absences, and (7) attendance standards are consistently enforced.
In light of the Verizon Settlement, employers may want to reassess utilization of no-fault attendance policies and consider returning to a fault-based attendance system.
G. Dress Codes
1. An employer may require an employee with a disability to observe a dress code imposed on other employees in the same job. For example, a professional office may require its employees to wear appropriate business attire because the nature of the jobs may bring them into contact with clients, customers, and the public. Where an employee’s disability makes it difficult for him to comply fully with the dress code, an employer may be able to provide a reasonable accommodation.
2. If an employee cannot meet the dress code because of a disability, the employer may still require compliance if the dress code is job-related and consistent with business necessity. An employer also may require that an employee with a disability meet dress standards required by federal law (e.g., OSHA’s requirement that an employee wear steel-toed boots).
H. Alcoholism and the Illegal Use of Drugs
1. The ADA may protect a “qualified” alcoholic who can meet the definition of “disability.” The ADA, however, does not protect an individual who currently engages in the illegal use of drugs, but may protect, a recovered drug addict who is no longer engaging in the illegal use of drugs who can meet the other requirements of the definition of “disability.” Individuals who are alcoholics or who are currently engaging in the illegal use of drugs may be held to the same performance and conduct standards as all other employees. This means that poor job performance or unsatisfactory behavior - such as absenteeism, tardiness, insubordination, or on-the-job accidents related to an employees alcoholism or illegal use of drugs need not be tolerated if similar performance or conduct would not be acceptable for other employees.
2. The ADA specifically permits employers to prohibit the use of alcohol or the illegal use of drugs in the workplace. Consequently, an employee who violates such policies, even if the conduct stems from alcoholism or drug addiction, may face the same discipline as any other employee. The ADA also permits employers to require that employees not be under the influence of alcohol or the illegal use of drugs in the workplace.
3. An employer is not required to provide a “firm choice” or “last chance agreement” to an employee who otherwise could be terminated for poor performance or misconduct resulting from alcoholism or drug addiction.
I. Confidentiality Issues
The ADA’s confidentiality provisions do not permit employers to tell co-workers that an employee with a disability is receiving a reasonable accommodation. It is imperative that managers be trained about how to respond to such questions because it is reasonable to assume that they may be asked questions by an employee’s co-workers where an accommodation involves modification of a work schedule or dress code, or any other change in the workplace that a co-worker may perceive as holding the employee with a disability to a different performance or conduct standard. An employer could respond that he/she does not discuss one employee’s situation with another in order to protect the privacy of all employees, but he or she could assure with the co-worker that the employee is meeting the employer’s work requirements.
V. EMPLOYER SPONSORED WELLNESS PROGRAMS UNDER THE ADA
The Equal Employment Opportunity Commission (EEOC) has issued a final rule addressing the treatment of wellness programs under Title I of the Americans with Disabilities Act (ADA). The new notice requirements and the rules pertaining to financial rewards will apply prospectively to wellness plans beginning on the first day of the plan year beginning on or after January 1, 2017.
A. ADA Final Rule
The ADA final rule applies to all wellness programs that include disability-related inquiries and/or medical examinations, whether they are offered only to employees enrolled in an employer-sponsored group health plan, offered to all employees regardless of whether they are enrolled in such a plan, or offered as a benefit of employment by employers that do not sponsor a group health plan or group health insurance. The final rule covers wellness programs that require employees to complete health risk assessments (HRAs) and/or undergo biometric testing for risk factors (such as high blood pressure or cholesterol).
Under the final rule, employee wellness programs may include disability-related inquiries or medical examinations so long as:
1. employee participation in the program is voluntary,
2. the wellness program is "reasonably designed to promote health or prevent disease,"
3. employer participation incentives do not exceed 30% of the total cost of self-only coverage, and
4. written notice and authorization forms contain additional confidentiality requirements.
In order for a wellness program governed by the ADA to be considered voluntary, a covered entity may not require employees to participate, deny access to health coverage for non-participation, generally limit coverage under its health plans, take any other adverse action, or retaliate, interfere with, coerce, intimidate, or threaten an employee who does not participate or fails to achieve certain health outcomes, and must provide a notice clearly explaining what medical information will be obtained, how it will be used, who will receive it and the restrictions on disclosure. The EEOC has published a sample notice for employer-sponsored wellness programs that can be found at https://www.eeoc.gov/laws/regulations/ada-wellness-notice.cfm.
The final rule reaffirms that an employer may offer incentives up to a maximum of 30 percent of the total cost of self-only coverage (including both the employee’s and employer’s contribution), whether in the form of a reward or a penalty, to promote an employee’s participation in a wellness program that includes disability-related inquiries and/or medical examinations as long as participation is voluntary.
The confidentiality provisions of the final rule require that if an employer receives aggregate employee medical information as a result of the wellness program, the form of the aggregate medical information must not disclose or be reasonably likely to disclose the identity of specific individuals. In addition, an employer may not require an employee to waive confidentiality protection or agree to the sale, exchange or other disclosure of medical information as a condition of participation in a wellness program.
B. EEOC Q&A
The EEOC has published question-and-answer documents on the final rule which is available at https://www.eeoc.gov/laws/regulations/qanda-ada-wellness-final-rule.cfm
VI. NEBRASKA DISABILITIES ACT
Nebraska has a statute that mirrors the employment provisions of the ADA which took effect on July 26, 1994. The Nebraska law is found within the Nebraska Fair Employment Practices Act. See, §§ 48-1101, et seq. ADA complaints may be filed with the Nebraska Equal Opportunity Commission.
VII. CONCLUSION
The ADA establishes a complex set of rules that cannot be ignored by employers covered by the Act. The employment provisions under Title I of the ADA are designed to remove unnecessary barriers to the employment of people with disabilities. Employers are required to both avoid discrimination against people with disabilities, and to “reasonably accommodate” the disabilities of employees and applicants.