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>THE LAW AT WORK
More Than Just an "A" for Effort: Reasonably Accommodating Employees with Disabilities
> by Patrick M. Stanton & Carmen J. DiMaria
(This is the second article in a new series featuring hot legal topics in the workplace. A series of Supreme Court decisions handed down this past summer have forced employers to examine workplace policies and practices related to the Americans with Disabilities Act (ADA). Pat Stanton and Carmen DiMaria, employment law specialists with the Morristown law firm of Stanton, Hughes, Diana, Salsberg, Cerra & Mariani, P.C., explain what employers should do to accommodate employees with disabilities.)
> The volume of employment discrimination lawsuits is skyrocketing in New Jersey and across the country. In large part, claims brought under the Americans with Disabilities Act (ADA) are responsible for the increased number of employment discrimination lawsuits. It is therefore critical for human resources professionals, managers and supervisors to familiarize themselves with and comply with the ADA, particularly the ADA's reasonable accommodation requirements. Strict compliance with ADA mandates, including participation in the interactive process described below, and providing reasonable accommodations to disabled employees as required under the ADA, helps insulate an employer from liability in two ways: 1) ADA lawsuits are prevented before they are even filed, and 2) the employer builds a viable defense against claims which are filed despite the employer's attempts to comply with the ADA.
>Background
The ADA provides that an employer shall not discriminate against a "qualified individual with a disability." In turn, a "qualified individual with a disability" is defined as "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." The law describes the term "reasonable accommodation" as "any change in the work environment or in the way things are customarily done that enables an individual with a disability to enjoy equal employment opportunities." The ADA provides that reasonable accommodations include, but are not limited to, the following:
- >Job restructuringPart-time or modified work schedulesReassignment to a vacant position Acquisition or modification of equipment or devices Appropriate adjustment or modifications of examinations Training materials or policies
- >The provision of qualified readers or interpreters
> An employer who fails to provide a reasonable accommodation when necessary will be liable for discrimination under the ADA unless the employer can demonstrate that the accommodation would impose an "undue hardship" on the employer's business.
>Requesting a Reasonable Accommodation
It is generally the responsibility of the individual with a disability to inform the employer that an accommodation is needed, and an employer has no obligation to provide an accommodation if it did not know the employee was disabled. However, if the employer does know — or has reason to know — of the employee's disability and the disability prevents the employee from requesting a reasonable accommodation, the employer may be held liable if it does not provide a reasonable accommodation — even without a request from the employee. Thus, an employer cannot bury its head in the sand if it knows an employee is disabled, even if that employee has not requested a reasonable accommodation. Instead, the employer must take the initiative and engage in the "interactive process."
>No "Magic Language" Is Required When Requesting a Reasonable Accommodation
Employers must bear in mind that there is no "magic language" which an employee must use to advise the employer that he is disabled and to request a reasonable accom-modation. For example, the employee need not use legal terms when making a request for accommodation — indeed, mention of "the ADA" or the term "reasonable accommodation" is not necessary. A request for a reasonable accommodation also does not need to be in writing, nor must the request set forth the name of a specific condition. >The Interactive Process
It is important for employers to recognize that the request for reasonable accommodation is "the first step in an informal, interactive process between the individual and the employer" to determine what accommodation is reasonable under the circumstances.
>1. Communication Is Key
Put simply, the law requires communication between the employer and the employee with a disability in order to determine the most reasonable accommodation for both employee and employer. Indeed, the importance of communication as part of the interactive process between employer and employee was very recently stressed by the United States Court of Appeals for the Third Circuit.
>2. The Employer Should Use the Interactive Process to Obtain Information Regarding the Employee's Condition
Once the employer becomes aware of the employee's disability and desire for an accommodation, the employer's first priority should be to obtain as much information as possible about the employee's condition and the basis for requesting an accommodation. Where an employee has already consulted with or been treated by a physician, the employer should send a written request to the employee's physician to promptly provide the following information:
- >A diagnosis of the employee's condition including a detailed opinion as to causation (addressing, in particular, those aspects of the employee's job or work environment that are believed to cause or contribute to the employee's inability to perform certain job functions). A description of the nature and severity of the employee's symptoms. The proposed course of treatment.The prognosis as to the duration of the employee's condition.Limitations/restrictions on the employee's regular activities as a result of her condition and/or the treatment of her condition.
- >The physician's opinion as to whether the employee's condition precludes her from performing any of the essential functions of her job and, if so, the physician's opinion as to the nature and duration of such limitation(s). In order to assist the physician in this regard,
>a job description should be enclosed setting forth a list of the essential functions of the employee's job.
- The accommodation(s) required to permit the employee to perform the essential functions of her job.
Where the employee has not consulted a physician prior to making a request for an accommodation, the employee should promptly be examined and evaluated by a physician. Whenever possible, the employer should allow the employee to select the physician who will initially examine and evaluate him. From the employer's point of view, information provided by the employee's physician will be the best evidence available to support the employer's position if litigation ensues. Once the employee's physician is identified, the employer should contact the physician in writing and request a formal written evaluation of the employee's impairment.
>3. Good Faith Is the Cornerstore of the Interactive Process
The interactive process does not require the employer to provide accommodations that would im-pose undue hardship upon its business; moreover, the interactive process does not require employers to retain employees who cannot perform the job even with a reason able accommodation. Instead, the interactive process simply boils down to good faith: did the employer make a good faith effort to seek accommodations. How does the employer exhibit good faith during the interactive process? One Court recently suggested that an employer exhibits good faith by taking part in the following conduct:
- >Meeting face-to-face with an employee who requests a reasonable accommodation.Requesting information from the employee about his or her condition and any limitations that the employee may have. Asking the employee what specific accommodation he or she desires. Showing some sign that the employee's specific requests were indeed considered by the employer.
- >If the request is too burden-some, offering and discussing available alternatives with the employee.
Any meetings with the employee relating to any of these points should be well documented should the employee later claim that the employer refused to take part in the interactive process.
>Specific Reasonable Accommodations
Some of the more common reasonable accommodations include the following:
>1. Job restructuring
2. Part-time or modified work schedule
3. Leaves of absence
4. Reassignment
5. Modification of an employee's work environment/equipment
6. Adjustment or modifications of workplace policies
7. Working at home
>1998-99 Legislative Session in Review: HR Highlights
The New Jersey Legislature's 1998-99 session was marked by lively debate over a variety of labor and employment issues. With the active support of human resource managers throughout the State, employers were able to score several victories while preventing antibusiness legislation from advancing.
> Progress was made on several workplace issues. Tougher penalties for workers' compensation fraud (S-251) became law. The Governor also signed legislation bringing New Jersey's minimum wage law into line with the national standard (A-2008). Meanwhile, several employer bills that did not become law still advanced further than in previous sessions. Strong liability protection for employers that give honest job references (A-1350) made it out of committee for the first time. Workplace drug-testing guidelines (A-296) passed the full Assembly and were released by the Senate Law & Public Safety Committee before stalling in the full Senate. Employers successfully opposed many bills that would have created new headaches for HR managers:
- > Paid Family Leave (A-1842). Every firm with two or more employees would have seen its Temporary Disability Insurance contributions diverted to pay benefits to employees who were no longer temporarily disabled—the first and only program of its kind in the United States. Union Organizing via "Sweatshop Reform" (A-2205). These vague guidelines would have effectively forced State agencies to stop doing business with nonunion firms- including those that comply with all relevant workplace laws.
- > Continued Raids on the Unemployment Insurance (UI) Trust Fund. Even as the notorious charity care diversion was phased out, employer UI contributions were targeted anew by several proposals. S-1787 sought to raid $250 million to build biomedical research centers. S-1542 would have extended unemployment benefits to part-time employees working as few as 15 hours per week. A-1448 would have made it easier to trigger special extended UI benefits, even in the absence of a recession. Finally A-2588 would have altered the law to allow laid-off employees to reject job offers for anything less than 100 percent of their past salaries. All failed to advance.
The NJBIA staff thanks the many members who took the time to contact legislators about these important bills.
>NJ ECONOMY-1999 Review
The New Jersey economy zoomed into record territory in 1999, surpassing economists' expectations and eclipsing the record set in the 1980s for the State's longest peacetime expansion. Even as the State moves into the ninth year of this remarkable expansion (the eight-year marker will be reached in March), the Governor's Council of Economic Advisors foresees clear sailing ahead for at least two more years. The Council believes the only event likely to tip the nation-and New Jersey-into a recession would be an over exuberant tightening of interest rates by Alan Greenspan & Co.
> New Jersey, like the nation, has enjoyed an economic cornucopia of plentiful jobs, low inflation, and strong personal-income growth. Their confidence at a 30-year high, consumers are emptying their wallets with abandon and piling on record debt to fuel purchases of cars, homes, and goods of all kinds. New Jersey housing permits neared 35,000 units last year, the highest level since 1988. New vehicle registrations jumped by 5.1 percent to 577,000, also the highest level since 1988. Retail sales rose a smoking 7 percent, exceeding $90 billion for the year. The total value of all goods and services sold in the State rose by nearly 6 percent to $327 billion. The cornerstones of this remarkable expansion are low inflation, full employment and positive income growth. The State's consumer price index rose by a 1.9 percent last year, just three-tenths of a percentage point higher than in 1998. The average unem-ployment rate was 4.5 percent, a nine-year low. Personal income rose by 5.8 percent, giving the average New Jerseyan a healthy inflation-adjusted gain of 3.8 percent. The year's brisk economic activity produced many new jobs. Although the final numbers aren't in, the Council of Economic Ad-visors estimates that 64,000 new jobs were created in 1999, virtually all in the private sector. Most of the growth occurred in the service-producing industries, offsetting continued losses in manufacturing employment. Total private-sector employment in New Jersey has reached a record 3.32 million. Looking at the most recent 12-month data (November 1998-November 1999), manufacturing employment fell by 10,600 jobs (-2.2%) to a record low 463,100, construction employment rose by a 3,200 jobs (2.3%) to 138,800, and service-sector employment rose by 70,200 jobs (2.7%) to 2.7 million. To put the employment picture in perspective, the State's nearly eight-year-old expansion has pushed the unemployment rate below 5 percent for 25 consecutive months. (It was 4.3 percent in November.) Since the end of the last recession in April 1992, the State's private sector has pumped out 437,000 new jobs, a gain of more than 15 percent. As the accompanying chart shows, the vast majority of this growth has come in the service-producing industries. The biggest contributor was business services, which added 129,000 jobs, a gain of 64 percent. Three quarters of the jobs in this sector were provided by personnel supply services, which gained 54,300 jobs or 115 percent, and computer programming/data processing, which gained 40,100 jobs or 87 percent.
| >PRIVATE-SECTOR JOB GROWTH, 1992-99* |
> |
> |
>Employment
as of Nov. '99 |
> |
>Gain Since
April 1992
Recession Low |
> |
>% Change |
| > |
| >Private-Sector Job Growth |
> |
>3,314,100 |
> |
>437,000 |
> |
>15.2% |
| > |
| > Service-Producing |
> |
>2,710,100 |
> |
>478,400 |
> |
>21.4% |
| > |
| > Construction |
> |
>138,800 |
> |
>30,000 |
> |
>27.6% |
| > |
| > Manufacturing |
> |
>463,100 |
> |
>-71,600 |
> |
>-13.4% |
| >Selected High-Growth, Service-Producing Industries: |
| > Business Services** |
> |
>331,800 |
> |
>129,000 |
> |
>63.6% |
| > |
| > Wholesale and Retail Trades |
> |
>913,400 |
> |
>103,000 |
> |
>12.7% |
| > |
| > Health Services |
> |
>335,800 |
> |
>56,800 |
> |
>20.4% |
| > |
> Transportation
& Public Utilities |
> |
>264,500 |
> |
>38,000 |
> |
>16.8% |
| > |
| > Engineering & Management |
> |
>136,900 |
> |
>32,500 |
> |
>31.1% |
| > |
> Finance, Insurance,
Real Estate |
> |
>258,100 |
> |
>32,100 |
> |
>14.2% |
| > |
| > Social Services |
> |
>80,100 |
> |
>24,700 |
> |
>44.6% |
>*Based on data provided by the NJ Department of Labor.
**Includes 54,300 jobs created in personnel supply, an increase of 115%, and 40,100 jobs created in computer programming/data processing, an increase of 87%. |
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