Sarasota, FL (WorkersCompensation.com) – Trying to comply with the Americans with Disabilities Act can seem like a nightmare for employers. It has many moving parts and can be confusing or even overwhelming. The penalties for noncompliance can easily run into the hundreds-of-thousands-of-dollars and much higher, along with potentially costly private lawsuits.
Experts say it doesn’t need to be as complicated as it appears. Having a basic understanding of the essential components can ensure companies strictly adhere to the law without compromising their business operations.
“The ADA is civil rights legislation,” said Aaron Konopasky, a senior attorney-advisor for the Equal Employment Opportunities Commission. “[It] is not insurance or a form of it, it’s not a benefit; it’s the idea of giving somebody what they need to accomplish the job.”
Konopsky spoke during a live-streamed session on How to Coordinate Return-to-Work with ADA Compliance, part of Workers’ Compensation Mastery Training produced by Amaxx Risk Solutions.
Initially implemented in 1990, the ADA was greatly expanded in January 2009. A key to Ada compliance is to focus on possible ways to accommodate workers with medical conditions, rather than trying to determine if a particular physical condition is protected under the law.
“Lots of medical conditions are disabilities under the ADA,” Konopsky explained. “The law says,’ don’t spend time figuring out if [a condition] is a disability; let’s get people back to work, get them what they need to be productive.’”
Essential Job Functions
The ADA protects only those employees who can perform a job’s ‘essential functions,’ with or without accommodations.
“Essential functions of the job are what the person was hired to do,” said Michael Stack, principal of Amaxx and the session moderator. “It’s the goals of the job, the end product.”
It’s also one of the most commonly confused areas of the ADA. Generally, it has little or nothing to do with a person’s physical condition.
“Nobody hires someone to stand or stoop, those are means of accomplishing things,” Konopsky explained. “The physical movements and physical capacity tend to change around when talking about reasonable accommodation. A person who can’t stoop will ask for reasonable accommodation that makes stooping not an essential part of what he does. “
An exception, of course would be on those occasions when physical abilities are relevant to a job.
Accommodating a worker with a physical challenge is a broad, gray area and should be carefully considered. It could involve a change in the way things at the workplace are ‘typically’ done, such as a physical change, a schedule adjustment, or a policy change. The idea is to help the person overcome his physical hurdle that is preventing him from performing the essential functions of the job as well as any other worker.
“The expected output is the same,” Stack said. “That’s a huge point to understand; you are changing the way things are done, but the output, the goal of the job that the person should be delivering is the same as a person without a disability.”
Employers don’t need to run their companies into ruin to comply with the ADA. If enabling a worker to perform the essential functions of a job poses significant difficulty and/or expense, the employer does not need to accommodate. But it’s important to understand that ‘significant’ is relative to the resources of the particular employer.
“It’s meant to be a high bar,” Konopsky said. “Employers have to do things that could be difficult, that could have an expense attached, because the goal of getting people to work is so important. But if they’re going to go bankrupt or there is no way to do it practically, they don’t have to.”
Large private companies and federal agencies would be hard pressed to demonstrate a lack of financial resources to accommodate a worker, Konopsky pointed out. A special keyboard or chair won’t break these organizations’ budgets.
Arguing that accommodation presents undue difficulty can be a challenge. It would almost mean a company’s entire operations would need to be reconfigured to accommodate the worker.
Disabled Job Candidates
Organizations sometimes find themselves in the law’s crosshairs by refusing to consider hiring someone who they believe could not physically do the job. Konopsky’s advice: don’t act hastily.
“If a person with a disability applies, the thing that could get you in trouble is to stop right after you ask, ‘could the person do it in the normal way? Could I fit this person in to the way things operate now?’ You shouldn’t stop there,” he said. “You should say, ‘is there a way they could do it if we change things around a little bit.’ You have to think of that before rejecting them on the basis of the disability. But if they can’t do it even with reasonable accommodation, they are not qualified and can be excluded from the job.”
Konopsky cautions that before disqualifying a disabled job candidate, employers should think outside the box. An accommodation may not be readily apparent.
“There are some cases on factory floors, where a person was deaf, for example, and the business rejected the person because he couldn’t hear sirens or alarms going off. The response was ‘that’s how it works,’” he said. “But we could install flashing lights that correspond with sirens … Courts look at whether [an accommodation] is feasible – sometimes it is, sometimes not. But you need to consider those things when thinking if a person is qualified.”