The Americans With Disabilities Act - An Employer's Responsibilities

In the first part of this article Attorney Mel Muskovitz discussed ADA requirements for employers.

What is a reasonable accommodation? Reasonable accommodations are adjustments or modifications provided by an employer to enable people with disabilities to enjoy equal employment opportunities.

Accommodations vary depending upon the needs of the individual applicant or employee. Not all people with disabilities (or even all people with the same disability) will require the same accommodation. Reasonable accommodations may, under some circumstances, include:

• purchasing equipment or modifying existing equipment;
• making changes to facilities or work areas;
• shifting responsibilities to other employees for minor tasks;
• adjusting arrival or departure times, providing periodic breaks, or altering when certain tasks are performed; and/or
• allowing an employee to use accrued paid leave, and providing additional unpaid leave once an employee has exhausted all available leave.

What is an undue hardship? Undue hardship is defined as an action requiring significant difficulty or expense when considered in light of such factors as:

• the nature and cost of the accommodation needed;
• the impact of the accommodation on other employees and the organization’s ability to conduct business; and
• the size, type and overall financial resources of the employer.

If providing a particular accommodation would result in undue hardship, an employer should consider whether another accommodation exists that would not.

Can an employer consider health and safety issues in deciding whether to hire an applicant or to retain an employee with a disability? Yes. The ADA permits an employer to require that an individual not pose a direct threat to the health and safety of the individual to other employees, or to the public. A direct threat means a significant risk of substantial harm.

When can an employer require a medical examination? The ADA prohibits medical examinations before a job offer was made. After a job has been offered and prior to the start of employment, a medical examination may be required and the job offer may be conditioned on the exam results. An examination must be required of every applicant in the same job category.

If the employment offer is withdrawn due to medical findings, the employer must be able to show the rejection was job related and a business necessity and that there was no reasonable accommodation that would enable the individual to perform the job’s essential functions.

Under the ADA, employers generally may not require medical examinations of employees except under the following circumstances:

• to determine if the employee can do the essential functions of the job following a leave for illness or injury or if the employee’s fitness for duty is in question;
• after an employee requests an accommodation, to determine if the employee has a disability covered by the ADA and what reasonable accommodations may be required;
• if required for employer-provided health or life insurance or for voluntary participation in an employer-sponsored health program; and
• if required by some federal law or regulation.