For many construction companies, the Americans with Disabilities Act (ADA) has been a mixed blessing. Certainly, the ADA has created a lot of additional business opportunities, building access ramps and other modifications to accommodate those in wheelchairs or with other disabilities. On the other hand, it can be nearly impossible to make sure that all buildings are "ADA-compliant.
In 2005, for example, the State of California Justice Department ran random inspections of twelve new apartment complexes to check their compliance with the ADA. Violations were found at every one of the apartment complexes, even those where the builders had conscientiously tried to follow the law.
While many construction companies work hard to understand what they need to do in terms of building ADA-compliant structures, they are not always as well-versed at making sure the company has ADA-compliant policies for its workforce.
Requirements of ADA
The ADA makes it unlawful for any employer of fifteen or more people to discriminate "against qualified individuals with disabilities in job application procedures, hiring, firing, advancement, compensation, job training, and other terms, conditions, and privileges of employment."
Congress enacted the ADA in 1990, with an effective date of 1993, to, among other things, prevent employment discrimination against individuals with disabilities who are otherwise able to perform the essential functions of a job with or without "reasonable accommodations" from the employer.
Courts have specifically found that employers violate the ADA when they conduct pre-job offer medical screenings, specifically ask an applicant questions about whether he or she has a disabling condition or automatically screen out people with disabilities by applying an employment test or qualification standard that is not directly related to an essential function of the job. However, employers may always require employees to maintain the appropriate licenses for the position they seek and meet any state or federally mandated standards, and they do not need to lower their safety standards to accommodate disabled individuals.
With so much open to interpretation, the ADA can be tricky for companies to manage.
Recent Court Cases
In a recent example, United Parcel Service, Inc. (UPS), was forced to re-examine how to balance its need for employee and public safety with its legal obligations under the ADA. The company said it was protecting its employees and society at large when it implemented a policy that required all applicants for driver positions to meet the Department of Transportation's (DOT) hearing standards for drivers of the largest class of commercial vehicles.
In 1999, a group of 1,000 deaf or hearing-impaired UPS employees sued the company under the ADA, arguing that by not hiring them for driver positions, the company illegally prevented them from advancing their careers.
A federal court ruled in the employees' favor, finding that UPS's policy violated the law. The court ruled UPS could no longer enforce its policy and ordered the company to pay the plaintiffs $5.8 million. The case is under appeal.
In Bates v. UPS, the court found that UPS's general policy against hiring deaf drivers violated the ADA because it didn't allow for an individual assessment of each driver's ability to safely operate a vehicle with accommodations, such as extra mirrors and other visual aids. Further, the court found that, although the standard UPS applied was mandated by the DOT for drivers of trucks heavier than 10,000 pounds, UPS violated the ADA when it applied that test to drivers for all vehicles in the absence of a clear showing that hearing-impaired individuals were any less capable of driving smaller vehicles safely.
How to Comply
While it can be complicated and counterintuitive, the first step towards implementing a solid ADA strategy is understanding who the ADA is designed to protect. The ADA 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 an impairment; or is regarded as having such an impairment." This means that employers must consider whether they must offer accommodations to individuals with a wide variety of physical or psychological impairments-a person with a leg injury who requires special footrests or back support, someone with an illness who needs more frequent breaks during the day to take medicine, and a person in a wheelchair who needs a different-sized desk may all come under the coverage of the ADA.
When considering whether the company has a duty to accommodate such individuals, employers must carefully weigh the employee's ability to meet legitimate business needs.
An employer need not create a new job to accommodate a disabled individual, but it may be required to modify non-core aspects of the job. For instance, if workers generally get a thirty-minute break every four hours, it may be a reasonable accommodation to give a worker with diabetes a ten-minute break every hour. Small expense or mere inconvenience to the employer is not enough "undue hardship" on the company to bring the employee outside the law's protection.
While employers do not have to honor employees' demands for accommodations that are unreasonable or too burdensome, they are obligated to try to meet the employees' needs. Employers must communicate with the employees and assess each individual's situation. This "interactive process" is a key component of an employer's obligations under the ADA.
An employee with a disability should only be terminated if it is impossible for him to perform the essential functions of his job with accommodations that are reasonable, taking into account the employer's size and resources.
Employers must tread lightly if they want to verify the extent and seriousness of the employee's medical condition. An employer may not require applicants to undergo medical examinations or ask questions about disabilites-either of the prospective employee or their doctor-before extending a job offer. However, an employer can condition an offer on the results of inquiries related to disability-related questions and medical examinations.
While it seems that the ADA would make it hard for a company to get anything done at all, remember that the ADA only requires employers to offer disabled individuals reasonable accommodations. That means that if a requested accommodation would be undue financial burden, the employer does not have to grant it.
The employer also would not have to grant the request if the accommodation would not enable the employee to perform the necessary job tasks, so it's important to have clear job descriptions. Whenever a job qualification standard, such as being able to climb stairs or ladders, tends to screen out people with disabilities, the burden will be on the employer to show that the qualification is job-related and consistent with a business necessity.
Perhaps most importantly, numerous courts have confirmed that regular attendance is considered an "essential function" of all jobs, and the Equal Employment Opportunity Commission, which enforces the ADA, points out that "an employer is not required to lower quality or production standards to make an accommodation."
Employers get in trouble when their policies exclude disabled individuals without considering what accommodations might help in each individual case. The key to complying with the ADA is engaging in a detailed discussion with the employee to find out what accommodations might enable him or her to perform the essential functions of the job.
Editor's Note: For more information on the rules and requirements of the ADA, visit http://www.ada.gov/.
Construction Business Owner, August 2008