Fifty-six percent of employers said that accommodations under the Americans With Disabilities Act (ADA) cost them absolutely nothing, while thirty-seven percent experienced a one-time cost averaging six hundred dollars. This is good news since the Americans’ with Disabilities Amendment Act (ADAA) of 2008 expanded the definition of the term “disability” and significantly increased the number of persons protected by the law. The new definition of disability may include such health challenges as: diabetes, obesity, back pain, and other minor ailments that may now be protected under ADAA.
Under ADAA employers are required to reasonably accommodate applicants and employees who are unable to perform the essential functions of the job, due to their disability. Additionally, employers must engage in a timely, good faith, interactive process with applicants or employees in need of reasonable accommodation.
According to the Bureau Labor Statistics, 18.4% of employees in the workforce have disabilities, as reported in September 2009. Employees with disabilities in the state of California are protected by both federal and state laws. ADA and ADAA are federal laws enforced by the Equal Employment Opportunity Commission (EEOC), with 15 or more employees. The Fair Employment and Housing Act (FEHA) is a law governed on the state-level which covers workforces with five or more employees. The two laws protect qualified individuals with disabilities and prohibit discriminatory acts with regard to: hiring, firing, advancement, training, compensation, and other terms and conditions of employment. ADA and FEHA clearly define disability as:
ADA
A person who has a physical or mental impairment that substantially limits one or more of his/her major life activities (which includes working), has a record of such an impairment, or is regarded as having such an impairment.
FEHA
A person who has a physical or mental disability that limits one or more major life activities, has a history of such, is incorrectly regarded as having had such, or is regarded or treated as having or having had an impairment.
The broader definition under ADAA means that employers are required to ensure the practice of “reasonable accommodations,” while being aware that the term “regarded” may lead to increased EEOC charges and lawsuits.
Interactive DialogueFEHA
Interactive dialogue is a process under the reasonable accommodation clause where the employee and employer have an open exchange of information. The goal is to ascertain the precise job-related limitations, how the limitations may be overcome with a reasonable accommodation, to identify potential accommodations and to assess their effectiveness. The examples of reasonable accommodation are as follows:
- Making existing facilities accessible
- Job restructuring
- Part-time or modified work schedules
- Acquiring or modifying equipment
- Reassignment to a vacant position
Here are examples of what is not required under reasonable accommodation:
- Removing of essential job functions
- Creating of new jobs
- Providing personal need items such as eye glasses and mobility aids
- Maintaining same pay and benefits for accommodating a change from full-time to part-time
- Tolerating violation of company conduct rules
As an employer there are six steps of the interactive process:
Step 1: Analyze the job and essential job functions
Step 2: Indentify job-related limitations
Step 3: Indentify possible accommodations
Step 4: Assess the feasibility of accommodations
Step 5: Implement the accommodation that is the most appropriate
Step 6: Follow up regularly
Under the ADA Amendment Act, employers are hard-pressed to find an employee who is not going to require an accommodation. It is important to practice the Interactive Process and to make reasonable accommodations for employees with disabilities. Information in this article is from November, 2009’s webinar entitled, Americans With Disabilities Act- Interactive Dialogue. If you have any further questions regarding ADAA compliance, please contact your CPEhr Human Resources Representative.