Many employers today talk of difficulties finding and retaining skilled workers. Imagine how much worse it would be if the 50 million Americans currently living with some form of disability were removed from the work force.
Disabling injuries or illnesses can happen to anyone at any time. Whether a person collides with a tree while rollerblading, develops heart disease or falls from a ladder in a business warehouse, no one is immune. In fact, recent estimates suggest 70 percent of Americans will at some point have a temporary or permanent disability that makes stair climbing impossible.
With such dramatic numbers — and potentially dramatic impact to match — employers would be wise to learn now about the Americans with Disabilities Act (ADA) and prepare for what may very well be an eventuality in their workplaces.
Definitions
When a worker develops a disability, the first question for employees will be can they perform the job with reasonable accommodation; and the first question for employers will be can they accommodate the employee’s needs without undue hardship.
The ADA defines a reasonable accommodation as "any change in the work environment or in the way things are customarily done that enables an individual with a disability to enjoy equal employment opportunities."
Undue hardship, on the other hand, is defined as significant difficulty or expense — focusing on the resources and circumstances of the particular employer in relation to the cost or difficulty of providing a specific accommodation. Undue hardship refers not only to financial difficulty but also to changes deemed unduly extensive, substantial or disruptive or that would fundamentally alter the nature or operation of the business.
The law is complicated because employers face many options for accommodating an employee. Possibilities run the gamut from altering hours or break schedules to purchasing specialized equipment. Employers may also face issues of access, such as fitting a wheelchair through a restroom door or a ramp or elevator in lieu of stairs.
State and federal law look at these cases differently. Generally, Wisconsin law is more sympathetic to employees, but both will look at cases on an individual basis to determine whether an employee can be accommodated reasonably.
Steps for Employers
With so many variables in play, employers can find it difficult to discern what courts may deem reasonable. The following steps can help:
According to the U.S. Department of Labor’s Office of Disability Employment Policy, almost half of the accommodations needed by employees and job applicants with disabilities cost nothing. Of the accommodations that do cost money, the typical expenditure is a one-time investment of around $600 — far less than hiring and training a new employee.
- Step 1: Develop job descriptions. Before disability issues arise, employers should develop a list of job functions for each position in the company. This preemptive move can help employers determine whether someone with a disability is able to perform a particular job.
- Step 2: Sort out which laws apply. If the employee acquired the disability while on the job, workers compensation law will play a role. If your company has more than 49 employees, the Family Medical Leave Act (FMLA) will be another factor to consider. These laws — workers compensation, FMLA and ADA — will interplay depending on the nature and cause of the disability.
- Step 3: Consider the possibilities. Don’t summarily dismiss considering what accommodations might work. Accommodation does not necessarily mean buying a six-figure piece of equipment; it may simply mean buying blocks to lift a table high enough so a wheelchair can roll up to it.
- Step 4: Proceed with tough decisions. Employers need to treat all employees — regardless of disabilities — the same when it comes to performance. If you have a worker who is not a good employee, it doesn’t matter whether he or she has a disability. Document the issues and discuss them, just as you would with any other employee. You may need to make a tough decision in dismissing an employee with a disability, and that’s OK so long as you follow the same path you would for any one else.
In a recent study from the Department of Labor, employers who accommodated workers with disabilities reported multiple benefits as a result, including increased productivity by the employee with the disability. Additionally, the Internal Revenue Service offers tax credits and deductions for businesses that accommodate workers (see www.irs.gov for more information). These gains over the long-term can easily offset the capital costs and temporary inconvenience of accommodating a valued team member.
Reprinted with permission from River Valley Business Report, Summer 2008.