12555 Orange Drive
Suite 233
Davie, FL 33330
12555 Orange Drive
Suite 233
Davie, FL 33330
Under the ADA an employer must provide “reasonable” accommodations for workers with known disabilities unless such accommodations would result in undue hardship to the employer. An accommodation is reasonable, and thus required under the ADA, only if it allows the worker to perform the essential functions of the job.
To win a disability accommodation claim under the ADA a worker must prove the following facts:
“Disability” is a physical or mental impairment that substantially limits one (1) or more major life activities. A physical impairment is a condition that prevents the body from functioning normally. A mental impairment is a condition that prevents the mind from functioning normally.
“Major life activity” is an activity that is important to everyday life, including the operation of major bodily functions. Caring for oneself, performing manual tasks, seeing, hearing, eating, sleeping, walking, standings, lifting, bending, speaking, breathing, learning, reading, concentrating, thinking, communicating, and working are examples of major life activities. Also, functions of the immune system, normal cell growth, and digestive, bowel, bladder, neurological, brain, respiratory, circulatory, endocrine, and reproductive functions, are also major life activities.
An impairment that substantially limits a major life activity if it prevents or significantly restricts a person from performing the activity, compared to an average person in the general populations. An impairment that substantially limits one (1) major life activity is a disability even if it does not limit a major life activity when active.
When workers claim that they are substantially limited in the major life activity of “working” for purposes of determining whether they are disabled under the ADA, their condition must significantly restrict their ability to perform either a class of jobs or a broad range of jobs in various classes as comported to the average person having comparable training, skills, and abilities.
A worker may also establish a disability by proving they had a record of a disability. You have a record of a disability if you had a history of a mental or physical impairment that substantially limits one (1) or more major life activities. If you had a disability but have recovered or the disability is in remission (i.e. cancer), then you are still considered “disabled”within the meaning of the ADA.
A disabled worker is “qualified” within the meaning of the ADA if he or she, with or without a reasonable accommodation, can perform the essential functions and job requirements of the position the individual worker holds. A job function may be “essential” under the ADA if there are a limited number of workers among whom performance of the job can be distributed. Determining whether a particular job duty is an essential function within the meaning of the ADA involves a factual inquiry to be conducted on a case-by-case basis.
For example, a worker with epilepsy who is a direct threat to himself (and others) while he worked as a line cook, makes him an unqualified worker under the ADA, especially when the worker admits that if he continued to work as a line cook he would have seizures which would pose risk of harm because of appliances, such as a gas flat top grill, involved in his job.
In another example, a worker with a back injury is not otherwise “qualified” within the meaning of the ADA for a position of distribution representative, where performing physical labor on packing station line is an essential function of such position, worker requested to be accommodated with a permanent desk job because he felt he was unable to perform physical labor, worker testified he applied for three (3) other jobs with the employer because they “didn’t require physical labor,” worker informed manager he would never work in a warehouse again because he didn’t want to risk further injury, and worker’s doctor felt worker could not perform duties such as squatting.
According to the ADA, an employer must make a reasonable effort to determine an appropriate accommodation for a worker’s disability when the worker notifies the employer of the disability or the worker’s need or desire for a workplace accommodation. The appropriate reasonable accommodation is best determined through a flexible, interactive process that involves both the employer and the worker with a disability.
Vague or conclusory statements revealing an unspecified incapacity are not sufficient to put employer on notice of its obligation under the ADA. Employer cannot be liable under ADA for firing worker when it had no knowledge of the disability because an employer cannot fire a worker “because of” a disability unless it first knows of the disability and naturally if it does not know of the disability, the employer is firing the worker “because of” some other reason.
Under the ADA, the burden of identifying an accommodation that would allow a qualified worker to perform the essential functions of his or her job rests with that worker, as does the ultimate burden of persuasion with respect to showing that such accommodation is reasonable. An accommodation is reasonable and necessary under the ADA, only if it enables the worker to perform the essential functions of the job.
For example, an employer adequately accommodated a grocery store cashier’s inability to stand for long-periods of time and, thus, did not violate the ADA, by offering paid break five (5) minutes shorter than her previous break, but not subject to any interruption, unpaid break of up to 60 minutes, shorter work shifts, leave of absence, and planned break time.
A worker does not satisfy his or her initial burden under the ADA of identifying a reasonable accommodation by simply naming an accommodation, even if it is mentioned in the ADA or regulations (i.e. part-time work). A worker must show that an accommodation is reasonable given his or her situation. Where an ADA worker cannot demonstrate a “reasonable” accommodation, the employer’s lack of investigation into a reasonable accommodation is unimportant.
In an ADA action, once a worker has met the burden of proving that a reasonable accommodation exists, the employer may present evidence that the worker’s requested accommodation imposes undue hardship on the employer.
The word “reasonable” as an adjective for the word accommodation under ADA implied that an employer is not required to accommodate a worker in any manner in which that worker desires In other words, a qualified worker with a disability is not entitled to the accommodation of his or her choice, but only to a reasonable accommodation.
Most course have reconciled the phrases “reasonable accommodation” and “undue hardship” in a practical way, holding that a worker need only show that an “accommodation” seems reasonable on its face. The employer then must show special (typical case-specific) circumstances demonstrating undue hardship in the particular circumstances.
It’s important to remember that the ADA is not intended to punish employers for behaving callously if no accommodation of the worker’s disability could reasonably have been made. A worker who goes beyond the demands of the ADA to help a disabled worker incurs no legal obligation to continue doing so.
A reasonable accommodation may include job restricting, part-time or modified work schedules, or reassignment to vacant position. The fact that both the ADA and regulations identify part-time work as a potential reasonable accommodation does not mean part-time work is always a reasonable depends on specific circumstances, and in a specific situation, part-time employment may or may not be reasonable.
Further, while part-time work may be reasonable if the employer has part-time positions “readily available” there is no duty to create a part-time position where the worker has eliminated part-time positions.
While the ADA may require an employer, in order to reasonably accommodate a worker, to restructure a particular job by altering or eliminating some of its marginal functions, employers are not required to transform the position into another one by eliminating functions that are essential to the nature of the job as it exists.
For example, an employer was not required to restructure bins sorter position, in accordance with changes suggested by worker’s doctor, in order to reasonably accommodate employee under ADA, inasmuch as such restructuring would have eliminated the position’s essential functions of squatting, kneeling, lifting, and carrying.
The ADA may require the employer to reassign, that is, transfer a disabled worker to a vacant position as a reasonable accommodation, but the reassignment duty does not require the employer to bump another employee from a position in order to accommodate a disabled worker or to promote a disabled worker.
For example, an employer is not required to reassign worker to customer service representative position to reasonable accommodate his back injury under the ADA, where there were no vacancies in that position, and reassigning worker to such position would have constituted a promotion.
Finally, a worker may have issues with reassignment to vacant positions when it conflicts with seniority rules, which may be sufficient to show that such an accommodation is not reasonable. However, the worker remains free to present evidence of special circumstances that makes a seniority rule exception reasonable in the particular case.
Attorney Micah Longo is the founding member
and managing attorney of The Longo Firm. A
Pennsylvania native, Micah Longo...Read More