White Paper published by The HR Specialist
The Americans with Disabilities Act (ADA) isn't an open-ended demand that employers do whatever is necessary to accommodate workers with disabilities. The law requires employers to make "reasonable" accommodations to allow a disabled worker to perform the essential functions of his job.
The key question: What is considered "reasonable"?
Two important terms to understand are "proportionality" and "undue hardship." These concepts serve to limit the scope of accommodation.
Clearly, any accommodation that bankrupts your company is unreasonable. Employers should measure costs versus benefits in assessing the merits of an accommodation request. For example, one court required an employer to remodel all bathrooms for wheelchair access, while another rejected a paraplegic worker's request that her employer lower a sink and counter in the office kitchen.
Proportionality. The ADA doesn't require you to make every corner of your office accessible and comfortable for workers with disabilities. You need to take only those steps that are necessary to allow the employee to perform the core tasks of his job.
This concept of proportionality shows that managers have an obligation to all their workers as well as to the business itself. In some cases, there may be a need to avoid accommodating a disabled worker if it puts too severe a financial burden on the firm.
The trick is to strike a fair balance between assisting disabled employees and protecting the interests of the company.
Undue hardship. The burden of proof is on the employer to show that an accommodation request is too expensive, too difficult or too disruptive. There is no monetary limit on accommodation, and undue hardship cases are generally decided on a case-by-case basis. What is considered unreasonable varies greatly and depends on the size and resources of the company.
To argue that an accommodation would cause your company an undue hardship, you must have supporting data in the following areas:
- The nature and net cost of the accommodation needed. The cost is the actual cost to your company. Specific federal tax credits and deductions are available for accommodations (see below). If you qualify for a tax break or partial funding, only the net cost to you should be considered.
- Various financial factors. The financial resources of the facility making the accommodation, the number of employees at the facility and the financial impact of the accommodation all can be considered.
- The type of operation. This includes the structure and functions of the workforce and the geographic, administrative or fiscal relationship to any parent company. For example, an independently owned fast-food franchise that receives no funding from the mother company would have an easier time asserting "undue hardship" than a shop that is funded in part by the parent.
- The impact of the accommodation on the facility. This includes how the accommodation would affect other employees' job performance and your ability to conduct business. For example, a person with a visual impairment applied for a job as a waitress at a nightclub. The club maintains dim lighting to create an intimate setting and lowers its lights further during the floor show. If the applicant requested bright lighting as an accommodation, you could assert that this would be an undue hardship, one that would seriously affect the nature of your operation.
Bottom line: The government doesn't require you to make an accommodation that would impair operations or put other people out of work. If you can show that a specific accommodation would be unduly disruptive to other employees or to your ability to conduct business, you may have a viable undue-hardship defense.
Three key points
1. You don't need to buy the most expensive equipment available. Indeed, the ADA encourages you to shop around and buy the least expensive item to do the job. "The law does not require Cadillac accommodation when Fords will do," says one ADA expert.
2. You need to be willing to sidestep restrictive policies. A "no dogs" rule, for example, would have to be scrapped to accommodate a worker's guide dog. Likewise, you may need to allow a dyslexic worker to submit reports orally rather than in writing. Policies prohibiting part-time work or flexible hours should be relaxed to permit medical treatments outside the office.
3. Job restructuring is another option. By reallocating or redistributing the marginal functions of a job, you allow a disabled worker to continue performing the essential tasks that he was hired to do. A receptionist, for example, might not be able to open the mail because of arthritis, but he can still answer the phone. Simply assign mail-opening duties to another worker.
Providing reasonable accommodation may pose some inconvenience to other employees and the company. Inconvenience is not an undue hardship even if restructuring requires other workers to do more than the disabled employee. However, you're not required to reallocate the essential functions of a job as a reasonable accommodation.
Types of Accommodations
Most disabled workers actually require no special accommodation. For those who do, the cost is usually lower than most employers predict. Studies by The Job Accommodation Network say more than half of all accommodations cost less than $500. Examples of accommodations you may be asked to provide:
- You may have to install a $45 light probe that tells a vision-impaired worker which telephone lines are ringing, on hold or in use.
- Workers who can lift but not carry heavy sacks may require a cart or dolly.
- Blocks under the legs of a desk can allow workers in wheelchairs to fit underneath.
- Flexible schedules can accommodate staff who must visit a physician during the day.
- An automatic page turner and a voice-activated tape recorder can allow a person without the use of his hands to review files and dictate reports.
Financial and Technical Assistance
Small business tax credits: A special tax credit can help smaller companies make accommodations required by the ADA. An eligible small business may take a tax credit of up to $5,000 per year for such accommodations. The credit is available for one half the cost of "eligible access expenditures" of more than $250 but less than $10,250. An eligible small business is one with gross receipts of $1 million or less for the taxable year, or if that criterion does not apply, one with 30 or fewer full-time employees. Cost that qualify include those spent on removing physical or communication barriers, providing interpreters and modifying or buying certain equipment.
Tax deduction: A business may deduct up to $15,000 per year for expenses in removing specified architectural or transportation barriers. Covered expenses include the costs of replacing barriers, such as steps, narrow doors, inaccessible parking spaces and toilet facilities.
Work Opportunity Tax Credit: The WOTC applies to newly hired individuals from targeted groups, including those in vocational rehab programs. Employers receive a credit of 40 percent of a worker's first-year wages. For details, go to www.doleta.gov/business/Incentives/opptax.
Technical assistance: Several resources offer advice on accommodations-many of them at no cost. The ADA Regional Business and Disability Technical Assistance Centers are a major source of information and referrals to specialized local sources.
Other sources include state and local vocational rehabilitation agencies and the Job Accommodation Network, which can be reached at (800) 526-7234 or at www.jan.wvu.edu.
The ADA Guide for Small Businesses is available free from the government by calling (800) 514-0301 or online at www.sba.gov/ada/smbusgd.pdf.