By Jim Cline and Erica Shelley Nelson
Representing the Injured or Disabled Member
Part 5: Introduction to the Duty of Accommodation and the Maze of Disability Laws
This article is the 5th in a multiple part series covering the rights your injured and disabled members have and how you, as a union or guild representative, can best assist them. Over the next two to three months, we’ll be publishing, in various segments, information on how state and federal laws protect your members who are hurt or otherwise unable to work. We’ll cover topics including disability discrimination law, the FMLA, job protection rights under the CBA, workers compensation, disability benefits, and the right to bring a civil lawsuit.
The topics we are covering all also going to be addressed in detail in an upcoming book we’re publishing: Helping the Injured or Disabled Member: A Guidebook for the Washington Law Enforcement and Fire Union Representative. It is also our intention over the course of the next year to travel through the state and provide training to public safety union and guild representatives on how best to enforce these rights. Expect to hear more on that in the months ahead.
The Fifth article in these newsletter series provides an overview and introduction to the rights of accommodation under disability laws. For more information, visit our Premium Website. On the website you’ll find an on line version of the Injured or Disabled Member’s Guidebook and other information on the laws covering your members.
It is important to understand first the narrow, carefully crafted language of the ADA. First, the statute prohibits discrimination, in a number of forms, against individuals with “disabilities.” The statute defines “disability” as a: “(a) a physical or mental impairment that substantially limits one or more of the major life activities of such individual; (b) a record of such an impairment; or (c) being regarded as having such an impairment.”[1]
Therefore, an employee need not have an actual current medical limitation to be considered disabled. It is enough that the employee either has had that condition in the past, or that he is perceived as having one by an employer. The “perception” element becomes important when the employer discriminates based on stereotypical perceptions of what persons who have had certain disabilities in the past are capable of.
The general statement of prohibition of discrimination under the ADA is that
[N]o covered entity shall discriminate against a qualified individual with a disability because of the disability if such individual in regard to job application procedures, the hiring, advancement, or discharge of employees, employee compensation, job training, and other terms, conditions and privileges of employment.[2]
Therefore, to be entitled to the protection under the ADA, an employee must be a “qualified individual with a disability.”
The statute also defines a “qualified individual with a disability”:
The term qualified individual with a disability means an individual with a disability who, with or without reasonable accommodation, can perform the essential functions of the employment position that such individual holds or desires. For purposes of this title, consideration shall be given to the employer’s judgment as to what functions of a job are essential, and if an employer has prepared a written job description before advertising or interviewing applicants for the job, the description shall be considered evidence of the essential functions of the job.[3]
Therefore, to be a qualified individual with a disability entitled to protection from the statute, the employee must have:
- A disability; and
- The ability to perform the “essential functions” of the job — with or without a “reasonable accommodation.”
Only after employees can demonstrate that they meet this rigorous standard, can they invoke the protections of the ADA. In other words, if they cannot prove that they are qualified individuals with a handicap (or are “perceived” as such) they have no protection against discrimination under this law. But if they can meet this test, then they can assert an entitlement to a “reasonable accommodation” of their disability.
The ADA defines “reasonable accommodation”:
The term reasonable accommodation may include (a) making facilities used by employees readily accessible to and usable by individuals with disabilities and (b) job restructuring, part-time or modified work schedules, reassignment to a vacant position, acquisition or modification of equipment or devices, appropriate adjustment or modification of examinations, training materials or policies, the provision of qualified readers or interpreters, and other similar accommodations for individuals with disabilities.[4]
These are the types of accommodations an employer may make. But even these identified accommodations are not mandated if they would not be “reasonable” (as that term is elsewhere defined in the law).[5] That exit door exists due to the “undue burden” test and other related defenses.
The statute defines a reasonable accommodation as one that does not impose “an undue hardship on the operation of the business of such covered entities.”[6] In adopting the ADA, Congress defined “undue hardship” as “an action requiring significant difficulty or expense.”[7]
Congress identified a number of factors to consider in assessing whether an accommodation involved an undue hardship. The primary factor is “the nature and cost of the accommodation needed.”[8] But the nature and cost of accommodation is to be balanced against the “overall financial resources of the ‘facility’ involved and the ‘covered entities.’ ”[9] It also allows consideration of “the type of operation or operations of the covered entity, including the composition, structure and functions of the workforce of such entity.”[10]
There are two major areas where employees lose their coverage of the ADA. First, there is a requirement that the condition “substantially limits one or more of the major life activities of such individual.”[11] Although “work” is listed as a major life activity, there is a dispute among the courts about whether work means one particular job, a class of jobs, or the ability to work in general. For example, the courts are split on the question of whether the inability of an employee to work as a police officer or firefighter substantially limits a “major life activity” where an individual can do other work, even within the same department.
The second area where employees lose out on ADA coverage is the “essential functions” requirement. If an employee cannot fulfill the bona fide “essential functions” of the position — with or without reasonable accommodation — the individual is not covered under the discrimination protections of the ADA. Often, three leading issues that arise in connection with fulfilling essential functions are:
- Whether the functions claimed as necessary by the employer are truly “essential.”
- Whether the employee can perform those functions with or without an accommodation.
- If an individual who could perform the “essential functions” only with accommodation, whether that accommodation is a “reasonable” one.
In the next article in these series, we’ll explore the Washington state law governing disabilities and contrast its scope of protections with that of the ADA.
[1] 42 U.S.C. § 12102(2).
[2] 42 U.S.C. § 12112(a).
[3] 42 U.S.C. § 12111(8).
[4] 42 U.S.C. § 12111(9).
[5] 42 U.S.C. § 12111 (5)(a).
[6] 42 U.S.C. § 12112(5)(b).
[7]42 U.S.C. § 12111(10).
[8] Id.
[9] Id.
[10] Id.
[11] 42 U.S.C. § 12102(1).
