Employers Requirement to Accommodate Disabled Workers

Like other individuals, disabled persons are encouraged by the government to become productive members of society by giving them equal opportunities in employment. To support this effort, several laws were also created to assist and protect the interests of disabled persons during hiring, or at work.

The Americans with Disabilities Act (ADA) is one of the major federal laws that protect disabled persons against discrimination and unfair treatment in the workplace. In addition to this, states have also adopted their own anti-discrimination laws, such as California’s Fair Employment and Housing Act (FEHA).

Definition of Disabled

Based on ADA definitions, a disabled person is:

• Someone who has a physical or mental impairment that substantially limits a major life activity such as seeing, hearing, walking, breathing, working, or learning
• A person who has such impairment
• Anyone who is regarded as having such impairment

However, in order to be protected by the ADA, a worker must not only qualify as disabled or impaired; he must also be qualified to perform the essential duties of the job.

Besides providing protection, these laws also require reasonable employer disability accommodations to allow disabled workers and employees to perform their jobs. Failure to accommodate disability is considered a violation of both the ADA and the state discrimination law such as FEHA.

Reasonable Accommodations for Disabled Employees

As defined by the US Department of Justice, a reasonable accommodation refers to “any modification or adjustment to a job or work environment that will enable a qualified applicant or employee with a disability to participate in the application process or to perform essential job functions”. This also includes adjustments that would ensure a disabled person to enjoy employment rights and privileges equal to other employees who are not disabled.

Any reasonable accommodation or adjustment done by an employer would depend on the type of disability a worker has. For instance, a worker with diabetes may have to take frequent breaks to test blood sugar or take insulin. An employee who has a medical condition which limits his/her ability to walk may need to have workspace locate close to the entrance and the restrooms.

Other accommodations may also involve adjustments to a workstation, wearing of safety equipment or protective gear, and the use of vision or hearing aids.

Depending on the circumstances, the accommodation may also include the following:

• Adjustable work stations
• Different working hours
• Being allowed to work at home
• Change in location of workspace
• Leave of absence

Transfers and Other Accommodations for Disabled Workers

In some cases, a disabled employee may also be allowed to transfer to another job. Nevertheless an employer is not required to create a new job for a disabled employee but merely to allow a disabled employee to move to that job when a job becomes available to accommodate his disability.

Under the FEHA, an employer is obliged to engage in good faith interactive process when a request for accommodation is made. This process is done to allow the employer to understand the accommodations or adjustments to be undertaken and how these changes will affect the employee’s ability to work.

A disabled employee must therefore notify the employer about his disability and medical condition. Once notified, the employer in turn must initiate the informal interactive process to clarify the needs of the disabled employee and the type of accommodation being requested.

If a particular accommodation is not possible, the employer must look at other options to help the employee perform his/her job. Under the law, an employer has a greater duty to try and accommodate a disability based on his knowledge, including information that employee may not have.

However, the law states that the reasonable accommodation can only be made if it would not cause undue hardship to the employer.

Proving an Employer’s Failure to Accommodate

To make a claim against an employer’s failure to accommodate, the employee must establish three things:

• That he/she is disabled
• That he/she is qualified to perform the job
• That the employer had refused to make reasonable accommodation as requested

On the other hand, the employer has the burden of proof in showing that the accommodations requested would cause undue hardship.

More info from Rodney Mesriani: Equal Rights for Disabled Employees

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