For many employers, one of the more shocking aspects of starting a new business can be the incredible number of regulations that must be complied with on a daily basis. From workplace safety issues, to environmental standards, to food safety issues, employers are constantly navigating the difficult reality of regulation.
While these regulations can no doubt be cumbersome, they are often critically important to employees. Health and safety regulations ensure that workers have access to the safe workplace necessary to continue their jobs. Similarly, regulations under the Americans with Disabilities Act ensure that employees with disabilities have access to the accommodations they need to do their job.
Although most employers are familiar with regulations that apply to all employees and all situations, ADA regulations may not necessarily apply to an employer until it hires an employee with disabilities. For this reason, special care must be taken to ensure compliance. It is in an employer’s best interest to learn about the basics of ADA regulation before getting into a difficult situation.
The ADA applies to all types of employers, including public companies, private companies, government employers, and non-profits. For businesses started between 1992 and 1994, any business with twenty-five or more employees must abide by the ADA. For businesses started after 1994, any business with fifteen or more employees must comply with ADA requirements.
Failure to comply with the ADA can lead to very significant penalties, including investigation and prosecution by the Department of Justice. The Equal Employment Opportunity Commission (EEOC) is also often involved in the prosecution of disability discrimination under the ADA.
First and foremost, the ADA requires that employers not discriminate against disabled applicants or employees through hiring practices, pay determinations, job assignments, or internal promotions.
Under the ADA, if an employee (or potential employee) could perform the essential functions of a job with or without accommodation, then an employer should not discriminate against the employee because of his or her disability. What this means practically is that if an employee can perform the essential functions of a job with accommodations, those accommodations should be provided.
A reasonable accommodation is any type of slight adjustment to the job or the work environment that would permit a disabled individual to perform the job just as any other individual could.
For example, in the case of a physical disability, a reasonable accommodation may require a slight modification to equipment or devices that are used by the employee. Or it may require the employer to ensure that the workplace is acceptable and accessible for a disabled employee, such as by providing a ramp or handrails in a bathroom.
While we often think of reasonable accommodations in terms of physical impairments, employers must also be prepared to provide reasonable accommodations for mental disabilities as well. This may mean restructuring a job slightly to accommodate an employee, or offering a more flexible work schedule.
It can also mean modifying trainings or training materials, offering additional time for employees to complete tasks or trainings, and providing necessary interpreters (such as a sign language interpreter) or reading devices so that employees have equal access to the materials that they need.
Identifying reasonable accommodations can sometimes be difficult. Assertive employees or applicants with disabilities may readily tell their employers about the accommodations they need, or request certain adjustments be made to their workplace environment or schedule.
For others however, the employer may need to take an affirmative step to consult with the employee and determine what accommodations are necessary. An employer cannot simply ignore a disability until the employee reaches out. The standard requires that an employer make a reasonable affirmative effort to identify an accommodation if an employee does not immediately suggest one.
An employer must provide reasonable accommodations unless it would be an undue hardship for the employer to do so. Undue hardship is a very high standard to meet and requires the employer to show that a significant burden or expense would be required in order to accommodate a disabled employee. When considering this standard, courts do take into account the size and resources that your business has and whether a reasonable accommodation would be overwhelming to the business owner.
Depending on the industry that you are in, undue hardship can also occur where accommodating the needs of a disabled individual would fundamentally alter the nature or operation of a business.
For example, if your business operates in a highly physical and demanding industry, such as construction or landscaping, you will not necessarily be expected to completely change how you work in order to accommodate someone with a physical disability. If however, you work in an office environment and someone merely needs a change to their desk set up, it would be difficult to argue that this is an undue hardship.
In this day and age, there are a wide variety of technologies that can be used to help employers and employees accommodate the restrictions of a disability. For this reason, if you have an employee or potential applicant that identifies a disability, you should be prepared to work with them on developing suitable reasonable accommodations.
At the same time, you will inevitably run across applicants who do not appear to be able to perform the essential functions of the position, or who request accommodations that would be costly and overly difficult for your company to accommodate. In these types of situations, it is helpful to be able to consult with an experienced employment law attorney to determine whether your inability to provide reasonable accommodation could be construed as discrimination.
At Romano & Sumner, PLLC, our employment law attorneys have worked with countless employers to develop robust policies and procedures for working with disabled employees – and to ensure proper documentation and explanation occurs when a disabled applicant cannot be hired, or accommodated. We pride ourselves on serving Sugar Land, Houston, and the surrounding areas. For more information, contact us online or at 281-242-0995.
Romano & Sumner, PLLC