What to do when an employee tell you s/he is disabled and asks for an accommodation?
That depends on a number of factors.
First, how many people do you employ?
If your company employs more than 15 people, it is subject to the requirements of the Americans with Disability Act and state disability laws as well.
If you are a Maryland company and have 15 or fewer employees, Federal and state employment laws do not apply to you (see exception * below).
If you are a Virginia company and have 5 or fewer employees, Federal and state employment laws do not apply to you (see exception * below).
If you are a DC company you must comply with the DC Human Rights Act, whatever your size. If you have 15 or more employees the Federal Americans With Disabilities Act, as amended, also applies.
*Note that the DC Human Rights Act will apply to any employee who works in DC, whether the company has its offices or is registered in another state.
Next, is the employee a qualified individual? Can the employee perform the the essential functions of his/her job?
Look to the job description.
For the purposes of the law, 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.
Is the reason for the requested accommodation a disability?
The ADA expressly states that the definition of a disability is to be broadly construed. Employers, therefore, are well-advised to be cautious and to consult counsel before acting on a determination that a condition is not covered by the disabilities laws.
However, some guidelines should help:
- Imperfect eyesight corrected by glasses or contacts are expressly excluded from coverage by the law.
- Injuries that heal in a few weeks or even months are not considered disabilities.
- Non-chronic illnesses are generally excluded from coverage under the disability laws.
But anything that affects a “major life activity,” such as reading, learning, working, “communicating,” “concentrating,” “thinking,” “caring for oneself,” walking, eating and sleeping is likely to be a disability and covered by the law.
In addition, any impairment that interferes with the “major bodily systems or organs” (such as circulatory, respiratory, digestive, neurological, reproductive) is a disability covered by the ADA.
Is the requested accommodation reasonable or does it impose an undue hardship on your company?
In general, the term “undue hardship” means an action requiring significant difficulty or expense, when considered in light of the following factors:
(i) the nature and cost of the accommodation needed under this chapter;
(ii) the overall financial resources of the facility or facilities involved in the provision of the reasonable accommodation; the number of persons employed at such facility; the effect on expenses and resources, or the impact otherwise of such accommodation upon the operation of the facility;
(iii) the overall financial resources of the covered entity; the overall size of the business of a covered entity with respect to the number of its employees; the number, type, and location of its facilities; and
(iv) the type of operation or operations of the covered entity, including the composition, structure, and functions of the workforce of such entity; the geographic separateness, administrative, or fiscal relationship of the facility or facilities in question to the covered entity.
- Ask for substantiation from the employee’s medical provider. You have a right to this information. You can provide a list of questions to the doctor, a standard form, or simply ask the employee to have the doctor provide a letter explaining the disability and how it affects the employee’s ability to function at work.
- Establish what the essential functions of the employee’s position are, using such documents as job advertisements, position descriptions, or a catalogue of deliverables on which the employee is evaluated. This will provide a basis against which you can evaluate the requested accommodation.
- Evaluate the requested accommodation for its cost to your company. You are required to provide the accommodation to your employee unless doing so would be an undue hardship. Undue hardship generally refers to something requiring significant difficulty or expense when the nature and cost of the accommodation needed is compared to the overall financial resources of the business.
- Propose an alternative accommodation that is less burdensome for your business but that arguably would address the problem addressed by the employee’s proposal. For ideas about alternative accommodations, you may find http://askjan.org/ helpful.
- Engage in a discussion with the employee over time about the needed accommodation and more feasible alternatives.