Building service is an industry that relies on the physical labor of its employees to perform their jobs. Sometimes employees get sick or injured. The Americans with Disabilities Act (ADA) was enacted in 1990 to deal with those situations.

The primary focus of the ADA is to give workers with disabilities the right to work provided they can perform the essential functions of their job with or without reasonable accommodation. The law applies with equal force to both job applicants and existing employees.

The term “individual with disabilities” appears over and over again in any discussion of the ADA. The statute defines such a person as one who (1) has a physical or mental impairment that substantially limits one or more major life activities, or (2) has a history of such impairment, or (3) is regarded as having such impairment. Since the law was enacted, judicial decisions and congressional amendments have dramatically expanded the scope of cognizable disabilities to include virtually any medical condition ranging from cancer to chronic body odor.

Another term that recurs is “essential functions of the job.” This is a fact-based inquiry. This means the actual functions that are critical to accomplishing the job. It does not include functions that are only marginal or hypothetical.

After an employer becomes aware that an employee or job applicant possesses a disability, the law requires that an “inter-active dialogue” take place. This imposing-sounding term really means that the company and the individual sit down and talk. The employer needs to describe the essential functions of the job and ask if the individual can perform them “with or without reasonable accommodation.”

“Reasonable accommodation” means any change in the work environment or in the way things are customarily done that enables an individual with disabilities to enjoy equal employment opportunities. An employer need not make an accommodation that imposes “undue hardship” on the operation. This means that the proposed accommodation imposes significant difficulty or expense based upon the financial resources of the company and impact upon operations. Employers are not required to make accommodations that impact the health or safety of the worker or others.

Sometimes several different types of accommodations are available. The company is free to select the one that best meets its needs; it need not grant the accommodation requested by the individual. After a reasonable accommodation has been identified, the employer must make a good faith effort to implement it.

Examples of reasonable accommodation might include modified tools, equipment or supplies. In a recent case, a building cleaner claimed she was allergic to certain types of cleaning chemicals. The accommodation reached in that case was the provision of hypo-allergenic cleaning substances. Other accommodations might include modification to the working environment.

In another case, an office cleaner with chronically poor vision requested that the lighting in her areas be turned on so that she could see better. Once this was done, she performed satisfactorily.

In a third case, a building cleaner with diabetes requested periodic meal breaks in order to better control blood sugar levels. The accommodation reached in that case was to give the worker several snack breaks instead of one longer meal break. The range of potential accommodations is as limitless as the human imagination.

After a person requests and receives accommodation, that worker becomes “a qualified person with a disability” and is entitled to protection against harassment or discrimination on the job. These rights are enforced by the U.S. Equal Employment Opportunity Commission (EEOC).

There is a mistake that many employers commonly make. After a worker requests reinstatement after a sickness or injury, employers often require a doctor’s note certifying that the worker can return “without restrictions.” This requirement is too broad and violates the ADA. The employer may only require certification that the worker can perform the essential functions of the job with or without reasonable accommodation.

The issues that arise under the ADA are usually very fact-specific. For that reason, employers are well-advised to take great care in defining the “essential functions of the job” and to keep an open mind when considering potential accommodations.

Perry Heidecker is senior counsel for Milman Labuda Law Group PLLC, Lake Success, N.Y. The firm is a full-service Employment Law practice focused on counseling, preventive advice and training, policy and procedure design, representation before administrative agencies, litigation, and appeals.




POSTED ON: 7/24/2014