Employee Engagement

Purpose of Process (see below how HRSource™ can help):

To comply with the requirements of the Americans with Disability Act (ADA). Companies with 15 or more employees are covered under the ADA. Title I of the ADA makes it illegal for employers to discriminate in employment against people with disabilities. In addition, individuals with a disability who can perform the essential functions of the job with or without reasonable accommodation, must have an equal opportunity to obtain and hold a job.

Recommended Steps in the Process:

1. Review the job descriptions to ensure that the essential functions of the job are included.
   
   
2. Review the Job Opening forms to ensure that the essential functions of the open positions are included. This also includes openings for contract agency workers, to whom both the company and the contract agency have ADA obligations.
   
   
3. Ensure that managers and other Human Resources staff is aware of the following ADA guidelines affecting the applicant process:
   
   1. During the interview process, you may ask questions about the applicant's ability to perform job-related functions of the job, whether essential or nonessential. You may not ask the applicant questions about the disability or require the applicant to take a medical examination.
      
      
   2. After extending the offer you can require a medical exam, if it is required of all employees. Also you can make the job offer contingent on the outcome of the medical examination, as long as the exam is directly related to the individual's ability to do the job.
      
      
   3. If the individual is unable to do the job because of a disability, determine what reasonable accommodation could be made (use the ADA Reasonable Accommodation Checklist). The employer must initiate and engage in an interactive dialogue with the disabled employee to try to identify a reasonable accommodation that will allow him/her to keep working, including:
      • Meeting with the employee to discuss possible accommodations
      • Requesting information about the limitations
      • Asking the employee what accommodations they would like
      • Showing the employee that their requests were considered
      • Discussing alternatives when the employee requests are too burdensome
      
      Reasonable accommodation can include:
      • Making facilities readily accessible (wheelchair access, etc.)
      • Modifying existing equipment (telephone amplifier, Braille printer, etc.)
      • Job restructuring by eliminating or reassigning nonessential tasks
      • Transferring the employee to another position for which they are qualified (Note that a qualified disabled employee must be given priority in reassignment unless there is undue hardship)
      • Changing a work schedule
      • Providing additional unpaid leave
      • Hiring a reader (for a person with a visual impairment)
      
      If the employer can show that the accommodation would be an undue hardship -- that is, it would require significant difficulty or expense, then the accommodation is not required. Note that the courts have set a high difficulty and expense threshold (see additional information on Undue Hardship).
      
      
   4. The job offer can be revoked if the medical exam concludes that the individual cannot perform an essential function of the job and that no accommodation is available.
      
      
   5. If reasonable, make the accommodations and complete the hiring process.
      
      
4. Perform step 3 above, not only for applicants, but also for employees. Note that if an employee becomes disabled, the company has a duty to accommodate the disabled employee by evaluating other vacant positions and offering the employee alternative positions for which they are qualified, even if the employee does not request the accommodation.
   
   
5. Investigate every request that an employee makes for accommodation, determine the feasibility, and then communicate the finding to the employee, both verbally and in writing.

Process Tips:

Current users of illegal drugs are not covered under the ADA. However, former illegal drug users, including those currently participating in a supervised rehabilitation program, are covered under the ADA. Reasonable accommodation does not require bypassing the company seniority system.

Title III of the ADA has requirements of commercial facilities in the case of alterations to existing buildings and the construction of new buildings. New or renovated facilities must be readily accessible to and usable by individuals with disabilities, in accordance with the Americans with Disabilities Act Accessibility Guidelines (ADAAG).

Reasonable accommodation does not require violating the seniority provisions of a collective bargaining agreement, unless there is an absence of undue hardship.

A disability that can be corrected with "mitigating measures" such as medication, aids or prosthetic devices (e.g. eyeglasses) is generally not considered a disability under the ADA (unless the employer perceives the person as having a disability, etc.).

Also see information on coordinating ADA compliance with FMLA compliance.

ADA Undue Hardship

The following are guidelines on Reasonable Accommodation and Undue Hardship under the Americans with Disabilities Act (ADA) as published by the Equal Employment Opportunity Commission (EEOC).

The EEOC states that undue hardship must be based on an individualized assessment of current circumstances that show that a specific reasonable accommodation would cause significant difficulty or expense. A determination of undue hardship should be based on several factors, including:

• The nature and cost of the accommodation needed;
• The overall financial resources of the facility making the accommodation; the number of persons employed at this facility; the effect on expenses and resources of the facility;
• The overall financial resources, size, number of employees, and type and location of facilities of the employer (if the facility involved in the reasonable accommodation is pant of a larger entity);
• The impact of the accommodation on the operation of the facility.

Since the undue hardship determination is based on the net cost to the employer, an employer should determine whether funding is available from an outside source, such as a state rehabilitation agency, to pay for all or part of the accommodation. In addition, the employer should determine whether it is eligible for tax credits or deductions to offset the cost. Also, to the extent that a portion of the cost of an accommodation causes undue hardship, the employer should consider asking the individual with the disability if he of she will pay the difference. If an employer determines that one particular reasonable accommodation will cause undue hardship, but an alternate accommodation will be effective and will not cause an undue hardship, then the employer must provide the second accommodation.

An employer can't claim undue hardship based on employees' or customers' fears or prejudices toward the disability. Nor can an employer claim undue hardship because providing a reasonable accommodation might have a negative impact on the morale of other employees. However, employers may be able to show undue hardship where providing an accommodation would be unduly disruptive to other employees' ability to work.

How HRSource™ Can Help:

HRSource™ can track whether an employee has self-disclosed a disability.  Managers who interview applicants should be trained on all aspects of interviewing and hiring, including the treatment of applicants with disabilities.  Use HRSource™ to ensure that all managers with interviewing/hiring responsibilities have been trained.