The Americans with Disabilities Act requires that employers with 15 or more employees provide reasonable accommodations to employees with a disability.
Employers frequently are faced with requests for accommodations, and may rely upon myths, instead of law, in making decisions.
Here are some ADA myths busted:
This medical documentation can be required before an accommodation is discussed. Most, but not all, medical conditions are considered disabilities under the ADA.
Only physical disabilities are covered by the ADA: The ADA covers both physical and mental disabilities, so individuals diagnosed with bipolar and depression illnesses most likely will be covered, as may those who suffer from learning disabilities such as Attention Deficit Disorder.
Reasonable accommodations include reducing job expectations: If an employee’s job requires that he or she make 15 widgets a day, it is not a reasonable accommodation to reduce the job requirements to, for example, 12 widgets a day as an accommodation.
The law only requires that employers provide sufficient accommodations so that the employee is able to meet the same job requirements as others in the job. The ADA doesn’t require reducing job expectations.
Reasonable accommodations include elimination of essential job duties: If Sally can no longer travel as a result of her job, the law does not require that Sally essentially take a light duty status and not fly as a reasonable accommodation.
If, despite accommodation efforts, Sally still is unable to travel due to an accommodation, she is no longer qualified for the job, and not eligible under the ADA.
If an employee can no longer perform the job duties due to a disability, the employee must be terminated: If an employee like Sally above can no longer perform her job despite reasonable accommodation efforts, the ADA requires that employers consider transferring the employee to a vacant and open position for which the employee is qualified before terminating the employee.
The EEOC, and some courts, take the position that if the employee is minimally qualified for the job, that the disabled employee must be offered the position as a reasonable accommodation, even jumping ahead of more qualified candidates. The job need only be a lateral transfer (not a promotion) and if the new job pays less than the previous one, the employee can receive an appropriate reduction in pay.
Employers can ask if a job applicant if he has a disability prior to making an offer: The ADA prohibits any disability-related questions prior to the issuance of a conditional offer of employment.
For example, it is legal to ask an employee, “Can you perform the essential functions of this job with or without reasonable accommodations.”
It is not legal to follow up by asking the candidate to select whether an accommodation will or will not be needed ahead of making a conditional offer.
It is legal to make disability related inquiries, however, if the candidate’s disabilities are obvious or the candidate tells the employer about his or her disability, but even in that situation the employer may only inquire about reasonable accommodations that might be necessary.
Leave under the ADA can be indefinite: The ADA does not require that an employer provide indefinite leave as an accommodation.
The medical documentation needs to identify the timeline for the leave so that the employer can fully assess whether it can provide reasonable accommodations.
The ADA and FMLA are totally separate: This is partially true in that they are two separate laws, but when an employee has a serious health condition and a disability, the FMLA and ADA will run concurrently, and the employee is entitled to receive whichever law provides the greatest benefit to the employee.
The ADA can be complicated, so employers are well advised to utilize the ADA resources provided at EEOC.gov to make sure that they don’t mistakenly fail to engage in the proper process of providing reasonable accommodations to employees.