Wednesday, December 12, 2018
By Christina Davis

ADA Compliance & You In the early days of my career, I worked in an office with an open-floor concept. One of the employees who sat next to the door that led to the kitchen started getting migraines on a regular basis—migraines that caused her to leave before her shift ended. Naturally, this was affecting both her performance and our ability to close out the days’ orders, which required “all hands on deck” during the last two hours of each day.

It turned out that this employee had a sensory issue that had not been disclosed because it hadn’t been a problem until we employed a new cleaning service. After a couple of visits to her doctor, she discovered that the smell of bleach sent her senses into overdrive, causing these unmanageable headaches. When she brought this to our attention, we were able to make some very reasonable accommodations by moving her workstation far from the kitchen and requesting that the new cleaning staff change the cleaning supplies they used.

Whether you have been faced with the request of a reasonable accommodation directly or you have found yourself wondering why an otherwise fully qualified employee is having difficulty with performance, I daresay you have been faced with some of the topics covered under the Americans with Disabilities Act (ADA) of 1990—whether you know it or not.

The Equal Employment Opportunity Commission (EEOC) explains that Title I of the Act prohibits private employers, state and local governments, employment agencies, and labor unions from discriminating against qualified individuals with disabilities in the areas of job application procedures, hiring, firing, advancement, compensation, job training, and other terms, conditions, and privileges of employment. Employers with 15 or more employees must comply with the ADA.

The ADA was created to protect individuals who have a disability but who can do the same work as a person without a disability, with or without a reasonable accommodation. Employers covered under the ADA are required to provide reasonable accommodations that do not impose an undue hardship on the company, and it is up to the applicant/employee to inform the employer of the disability. This Act does not say that employers are forced to hire a person whose disability keeps them from performing the job (for example, a person whose disability prevents them from getting a driver’s license can be disqualified from being hired for a chauffeur position). This Act does, however, stipulate that people whose disabilities require them to be in a wheelchair cannot be disqualified from a position that requires someone to sit at a desk and work on a computer.

Before we discuss the decisions that need to be made when presented with an applicant or employee with a disability, we need to understand what constitutes a disability.

The EEOC defines an individual with a disability as a person who:

• Has a physical or mental impairment that substantially limits one or more major life activities;

• Has a record of such impairment; or Is regarded as having such an impairment


It is important to note that it is up to the affected person to ask for a reasonable accommodation if one is required; however, the defense of “he didn’t tell us he needed a reasonable accommodation” isn’t always an appropriate or successful tactic to take. As with all other employee issues, be sure your lines of communication are open: If you notice a sudden swing in performance, don’t rule out the possibility of a change in the disability status of that employee.

As with many laws, the ADA is not a black-and-white issue. A couple of aspects within the Act are subjective—aspects that can result in employers finding themselves in sticky situations if not considered appropriately with the input of an HR specialist/consultant or employment lawyer. Those two topics are: one, what is considered a reasonable accommodation; and two, what is considered an undue hardship.

A reasonable accommodation is an adjustment that can be made to the position, work environment, hours, etc., that will allow an employee to do their job despite having a disability. Some examples include allowing employees to stand at their desks instead of sitting in a chair, allowing an employee to take scheduled breaks to test blood sugar levels, restructuring their schedule to allow for regular doctor’s visits, and installing hearing assistance on the phone to magnify the sound level.

In the language regarding reasonable accommodation, the Act uses the term “undue hardship.” This is defined as anything that presents a “significant difficulty or expense.” Deciding what qualifies as an “undue hardship” varies from employer to employer. Sometimes a reasonable accommodation involves a monetary expense, sometimes it involves altering a schedule—but what it doesn’t involve is changing of performance standards. As a reminder, an accommodation is provided for an individual who can otherwise perform the position to the standards required. Here are some examples of reasonable accommodations.

A wheelchair doesn’t fit under the desk.
Accommodation: Putting the desk on wood block to allow the wheelchair to fit.

The screen’s glare is affecting an individual’s eye condition.
Accommodation: Purchase an antiglare screen for them.

They need to leave for a weekly medical appointment that is scheduled for 15 minutes before the employee’s shift is over.
Accommodation: Shifting the employee’s schedule for that day to allow for both the appointment and travel time.

Inability to concentrate in a loud, busy office setting.
Accommodation: Allow the employee to wear headphones while working, or if feasible, move the employee’s workstation to a quieter area of the office.

What if you are asked to make an accommodation that you feel would be an undue hardship? Providing examples of undue hardships is a bit more difficult than providing examples of a reasonable accommodation because the definition itself depends on the business, its financial health, resources, size, and structure. Therefore, any “action requiring significant difficulty or expense” varies.

When presented with the need for an accommodation that isn’t easily identified as reasonable or an undue hardship, getting an HR consultant or an employment lawyer involved is highly recommended.

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Christina Davis is the HR Director for the LMC Group. She can be reached at christina@LMC.group.