Shawn Smith

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How to comply with the ADA - Americans With Disabilities Act.

Americans With Disabilities Act (ADA) in the Workplace

Complying with the Americans with Disabilities Act (ADA) can be confusing for even the most well-intentioned companies, and recent court decisions have made matters even more complex. Failure to comply can be expensive. In a recent report of the EEOC, the agency projected that employers will pay over $50 million as a result of employee claims filed under the ADA in 2001. This figure does not include attorneys' fees, management time and other expenses.

One common source of the difficulty in complying with the ADA is knowing when and how to make reasonable accommodations for employees with disabilities. A reasonable accommodation is any change in the work environment or the way a job is performed that would allow a person with a physical or mental disability to enjoy equal employment opportunities.

Organizations are required to make reasonable accommodations for individuals with disabilities unless the accommodation would cause "undue hardship." Undue hardship can include significant financial expenditures or accommodations that would be unduly extensive or disruptive or significantly alter the nature or operation of the business.

As an employer, you must consider reasonable accommodation upon the written or verbal request of an employee (or the employee's physician). In situations involving obvious disabilities, you may ask the employee whether he or she needs reasonable accommodation.

Evaluate each request for a reasonable accommodation individually, considering the cost of the accommodation, available resources, the effect on the business and the impact on other employees. The EEOC expressly states that undue hardship does not include the fears of employees or customers or their prejudice toward individuals with a specific disability.

Here are some of the types of accommodations that you may be required to consider:

Restructuring.
This can include shifting minor functions of a position that the employee with a disability cannot perform to other employees that can perform them, or altering when and how the job is performed. You are not required to restructure a position to eliminate a primary job responsibility.

Making existing workplace facilities accessible.
In addition to the existing federal and state regulations regarding accessibility of facilities for persons with disabilities, you may be required to make further modifications to accommodate the specific needs of employees.

Providing unpaid leave.
If an individual's disability requires unpaid leave, providing this leave might be a form of reasonable accommodation if it does not cause undue hardship. Persons returning from leave should be reassigned to the same position whenever possible. You are not required to provide more paid leave to accommodate a disability than you provide for other employees.

Providing a modified schedule.
This could involve adjusting arrival and/or departure times, part-time hours, periodic breaks, or changing the time of day at which certain tasks are performed.

Reassignment.
Some employers have been required to reassign an employee who can no longer perform essential job functions because of a disability to a vacant position with responsibilities that the individual can perform. When feasible, this new position should be of equal pay and status. You are not obligated to create a new position, promote the employee or bump other employees to provide this accommodation. Moreover, the individual must be qualified for the new position-- i.e., have the skills, education and experience to perform the essential functions of the new position, with or without reasonable accommodation. You are not obligated to provide additional training to enable an unqualified individual to become qualified for a position.

Work with the employee to establish a reasonable accommodation, clarifying the scope of the disability and the specific need for accommodation. If there is more than one alternative accommodation that would enable the employee to perform the functions of the job, you may choose the least burdensome and/or least expensive option. Seek expert advice before denying any request for accommodation and you will minimize the risk of future litigation

Shawn Smith is a consultant, speaker, attorney and the founder of Next Level Consulting, LLC, an organizational development and management consulting firm. She has worked with a broad range of public, private and non-profit organizations to develop practical programs and strategies to navigate change, increase individual and organizational effectiveness and exceed business objectives. Shawn is the co-author of The HR Answer Book: An Indispensable Guide for Managers and Human Resources Professionals (AMACOM 2004). Contact her for more information through her web site at www.nextlevel-consulting.com.

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