Does the term "reasonable accommodation" give you pause? If so, you aren't alone. Many employers, uncertain of their obligations under the Americans with Disabilities Act (ADA), hesitate to use pre-hire testing, forgoing its benefits in reducing bad hires and workplace injuries in an effort to reduce risk of becoming entangled in the accommodation process. After all, "reasonable" means different things to different people, and getting it wrong in terms of what it means to the EEOC can cause a lot of trouble for your company.
Understanding what is and isn't expected of you can ease your mind as you work to ensure that your policies, procedures, and hiring practices – including pre-hire testing – are legally defensible, ADA compliant, and in line with other relevant employment regulations. How far is too far? A case example, published by the Birmingham Business Journal, offers valuable insight into this issue.
This case involves an employee who began work as a wastewater operator, a position that requires employees to work outdoors for the majority of their work day, in March 2012. In July 2012 the worker was diagnosed with lupus, a medical condition that increases risk of melanoma. Consequently, he was informed by his doctor that he could no longer work outdoors in the sun.
The employee inquired about alternative positions that would accommodate his medical need to avoid sun exposure, but no such positions were vacant. There was no reasonable accommodation that would prevent sun exposure during his existing duties. As a result, he agreed to resign.
Nearly two years later the former employee filed suit, claiming failure to accommodate and wrongful termination under the ADA. While the employee conceded that working in the sun was an essential function of the job, he argued that the existing job requirements should have been restructured or he should have been assigned to a new position in order to accommodate his medical needs. Additionally, with no alternative positions available, the employee felt that he should have been allowed to work the night shift in his existing position. Finally, the employee claimed that he was discharged due to his disability, stating that his resignation was not truly voluntary, and that this constituted discrimination.
The court dismissed these claims, ruling that the employee, being unable to perform the essential functions of the job, with or without reasonable accommodation, was not a qualified individual with a disability and not entitled to protection under the ADA. For the failure to accommodate portion of the claim, the court stated that while restructuring non-essential, marginal job functions qualifies as reasonable accommodation, restructuring essential job functions does not. As to the request to work nights, since the employer did not have enough nighttime work to justify a full-time employee, this would constitute the creation of a new position, which is not required under the ADA. Reassigning employees to positions for which they are qualified can constitute reasonable accommodation, but only if such positions already exist and are vacant.
Not only does this case offer great insight into just how far is too far in terms of ADA accommodations, it clearly underscores the importance of job demands analysis that defines the essential functions of jobs in your workplace as well as the physical requirements that go along with them. By knowing the essential functions of the job, this company was able to defend its position in this matter effectively, confident that it was legally defensible, ADA compliant, and consistent with all other relevant employment laws.