Several years ago, I attended a continuing legal education event at which a panel of attorneys discussed accommodations under the Americans with Disabilities Act. I remember the law-firm attorneys talking about how the ADA only requires that an employer provide a reasonable accommodation — not necessarily the employee’s first choice of reasonable accommodations.
That’s right folks. It’s time for another edition of “Fact or Fiction” a/k/a “Quick Answers to Quick Questions” a/k/a QATQQ f/k/a “I don’t feel like writing a long blog post.”
Many claims of discrimination require proof of what’s called an “adverse employment action.” A firing would qualify; so would an unpaid suspension. (But, not a paid suspension). Really, it’s anything that “materially adverse” to one’s job.
Ok. Suppose an employer withholds a discretionary bonus. Could that be discriminatory?
The regulations to the Americans with Disabilities Act include a non-exhaustive list of reasonable accommodations that may apply to allow an employee with a disability to perform the essential functions of the job. They include job restructuring; part-time or modified work schedules; reassignment to a vacant position; acquisition or modifications of equipment or devices; appropriate adjustment or modifications of examinations, training materials, or policies; the provision of qualified readers or interpreters. There’s also a catchall: “other similar accommodations for individuals with disabilities.”
To those who you who receive my blog posts via email, I’m sorry. Yesterday, we had some technical difficulties and my card check post didn’t make it into your inbox. I realize that for some of you — ok, all of you — my blog posts are an icy-cold bottle of beer in the arid desert that is your mid-week slog. Again, I’m sorry. I’ll
release the wrongdoers from the shackles in my basement do better.
But just to be safe, as a Versace belt to the Hermes suspenders, you may want to like The Employer Handbook on Facebook. Every post is shared there.
Now, back to employment law and what-not.
The Americans with Disabilities Act requires employers to provide a reasonable accommodation, upon request, to an individual with a disability to enable that person to perform the essential functions of the job. Oftentimes, the questions arises: What are the essential functions of the job?
My readers are the best!
On Friday, I received two emails within 15 minutes of one another, encouraging me to blog about this story. Kenneth Hilario at the Philadelphia Business Journal writes about an employee of an NJ company who is suing her employer. What makes this story special? The company allegedly fired the spouse’s husband, the company’s controller, because of his “extreme gas and uncontrollable diarrhea.”
The Americans with Disabilities Act requires an employer to accommodate an employee with a disability, if doing so will enable that individual to perform the essential functions of the job. The exception is if the accommodation would create undue hardship for the employer.
But when is that duty to accommodate triggered?
An alcoholic employee can present a number of tricky legal issues affecting the workplace. Under the Americans with Disabilities Act, there’s a certain dichotomy. That is, alcoholism is a disability under the Act. However, an employer can ban alcohol in the workplace and require that employees not be under the influence of alcohol.
But what about an alcoholic employee, who, while remaining sober at work, seeks a leave of absence to treat?
One of my all-time favorite ADA cases — God, am I a dork — is Keith v. County of Oakland, which I previously blogged about here. It involves a deaf lifeguard who applies for a position at a public pool and what, accommodations, if any are reasonable to allow him to perform the essential functions of the job. Why I like the case — in addition to singing the Baywatch theme when I speak about it at SHRM events — is it teaches employers never to judge a book by its cover. Even a deaf lifeguard may be qualified to perform the essential functions of the job.
Yesterday, I read about another case involving a deaf applicant for a safety-sensitive position.