11 things an employer might need to do to comply with the Americans with Disabilities Act and the Minnesota Human Rights Act
Making Reasonable Accommodations
Under
both the Americans with Disabilities Act (ADA) and the Minnesota Human
Rights Act, an employer with 15 or more employees has a duty to make a
"reasonable accommodation" to avoid discriminating against an
employee or job applicant with a physical or mental disability. Employment
agencies have the same duty, as do labor organizations, who must make
reasonable accommodations for union members with disabilities.
But what’s reasonable? What kind of accommodation will likely be required?
"There are many different forms the duty to accommodate can take," says Commissioner of Human Rights Janeen Rosas, whose department enforces the Minnesota Human Rights Act. While the ADA supplies guidelines, applying them to individual cases sometimes can be tricky. Jobs are different, and so are the needs of individuals with disabilities.
"There isn’t any chart or any way of telling in advance exactly what’s going to work for any one individual," says Rosas. Although questions about a disability are generally prohibited prior to making a conditional job offer, once the offer is made or the person is hired, it may be time to talk about exactly what is needed.
The employer must know of the disability, and the need for accommodation, to have a duty to accommodate it. Once these facts are known, "the law expects that the employer will engage in an informal dialogue with a person who has a disability, to determine what is the appropriate accommodation in a given situation," Rosas explains.
While individual cases may require other solutions, here are some examples of the kinds of things employers may be expected to do to comply with the ADA and the Minnesota Human Rights Act.
1. Redesign or adjust the work space. Put a desk up on blocks or lower it so that a person who uses a wheelchair is at the proper height. Make sure the aisles are wide enough for that person to get around.
2. Offer changes in scheduling. A person who has carpel tunnel syndrome, for example, may need variety in work, with tasks intermingled so he or she isn’t typing for six hours straight, then filing for two hours. A person with diabetes may need more frequent but shorter breaks for dietary reasons. And in some cases, such as with an employee who has a sleep disorder, making a reasonable accommodation might require permitting the employee to change shifts.
3. Provide special equipment. Employees with impaired vision or hearing, for example, may require an accommodation in the form of equipment that allows them to access a computer or communicate effectively with others.
4. Provide an interpreter. If technology isn’t the answer for an employee with a disability, the employer may be required to provide an interpreter in some situations.
5. Provide training manuals and other company publications in alternative formats such as large-print, audio recordings, or Braille. The requirement could extend to tests or examinations, statements of company policy, and notices of job vacancies.
6. Provide additional unpaid leave. Whether an employee has a physical or mental disability, granting additional unpaid time off, beyond available sick time or Family Medical Leave Act (FMLA) time off, may be considered a reasonable accommodation in some cases.
7. Ensure that break rooms are accessible to people with disabilities. "If a break room is on the second floor and there is no elevator, that could be discriminatory," notes Rosas. Moving the break room to the first floor could be one answer, and providing a separate break room on the first floor might be another alternative. "But if an accommodation in some way stigmatizes employees with disabilities by segregating them, it may not be an effective accommodation," Lapinsky says.
8. Allow a service animal. "There is a duty to allow a service animal," advises Rosas, and the same requirement applies to public accommodations such as restaurants, as well as schools. What if another employee is allergic to the service animal? "If it’s a severe allergy, that person may have a disability, too, but that would not be grounds for refusing to allow a service animal." The employer would need to seek some arrangement that would accommodate both needs.
9. Make the job less stressful. Anxiety, depression, and other mental health issues may also constitute a disability requiring a reasonable accommodation. "Can an employee request a stress-free work environment as an accommodation? I don’t think so," comments Steve Lapinsky, supervisor of the Department of Human Rights disability employment unit. "But in some cases, some changes in policies or procedures could be required to make a job less stressful for an individual with a disability. Certainly, any harassment of an employee with a disability must be promptly addressed by an employer."
10. Offer job reasignment. If no other accommodation would be effective or reasonable, or if the employee volunteers, an employee with a disability may be accommodated by reassignment to a vacant position for which he or she is already qualified. If this is the only remaining option, the employee should not have to compete for the position or find the job by him or herself, neither of which would be an accommodation.
11. Ensure that "perks" such as special classes and social events are also accessible to employees with disabilities. If an employer decides to offer a "weight watchers" class during lunch, for example, as a perk for employees who wish to lose a few pounds, the employer would be required to provide an interpreter so that a hearing-impaired employee could participate. "There is no duty to offer that kind of a program, but once it is offered, it has to be offered in a way that is accessible to all employees with and without disabilities." Rosas says.
In one case, an employer was required to put in a TTY so that an employee could make private phone calls at work during the day. The rationale was similar: if an employer permits non-disabled workers to make personal calls, an employee with a disability should have the same opportunity.
While these issues arise most often in employment situations – and more than four out of five disability cases filed with the Department of Human Rights are employment related – they apply also to public services, public accommodations and schools. A school may also be required to provide special equipment, provide an interpreter, offer changes in scheduling and allow a service animal as part of an individualized learning plan for a student with a disability.
"The law seems to be extending to companion animals, not just service animals," notes Rosas. So there could be a duty to accommodate "people who have mental health issues that are soothed by the presence of a pet. There recently was a successful housing lawsuit by a man who had a dog for that reason."
But suppose a requested accommodation will cost more than a business can afford, or would otherwise create an overwhelming burden? If it would cause an "undue hardship," an employer can refuse to make a particular accommodation, under both ADA and the Minnesota Human Rights Act. The size and resources of the employer are among the factors that can be considered in determining what’s reasonable. In addition, the employer does not have to lower production standards, remove essential job duties or compromise safety to make an accommodation, and is generally not required to provide "personal use items" such as eyeglasses and hearing aids.
What if an employee and employer disagree about what kind of accommodation is appropriate?
The employer has some flexibly in determining exactly how to accommodate a disabled individual’s needs, and may choose a less expensive option than one proposed–if it does the job. "A person who needs an accommodation is not necessarily entitled to the one he or she would prefer," notes Lapinsky. "The employee is entitled to one that is effective."
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This material previously appeared in the Fall 2000 issue of the Minnesota Department of Human Rights' newsletter,The Rights Stuff. |
