Since the enactment of the ADA Amendments Act (ADAAA) in 2009, commentators have been predicting a rise in disability claims. Statistics recently released by the Equal Employment Opportunity Commission (EEOC) show that those predictions have come true. In fiscal year 2011, the number of disability discrimination charges filed under the Americans with Disabilities Act (ADA) rose for the second year, totaling more than one quarter of all charges filed.
Through its enforcement, mediation, and litigation programs, the EEOC won $103.4 million for employees and applicants claiming disability discrimination in 2011, compared to $76.1 million in 2010. That represents a nearly 36 percent increase, the highest increase among all types of charges. And what are the impairments most frequently cited as a “disability” under the ADA? Number one is back impairments (no surprise there), followed by orthopedic impairments, depression, anxiety disorder, and diabetes.
A few lawsuits have also been decided under the ADAAA’s less stringent standards, and the results are discouraging for employers. Wal-Mart had to pay $275,000 to a former employee whom it fired after deciding he was unable to perform the essential functions of his job following cancer surgery. The court in that case concluded that Wal-Mart had retaliated against the employee because he complained about the denial of his accommodation request. In another case, a court awarded $190,000 to an employee who was terminated after suffering seizures. The court concluded that the employer had wrongfully denied the employee a reasonable accommodation after her seizures restricted her from driving (she had requested that she be able to “swap out” certain duties with a nondisabled employee).
Consider Reasonable Accommodations
Commentators agree that under the expanded ADAAA, little time should be spent considering whether an employee’s impairment is a true “disability.” Currently, just about any condition will qualify. Rather, when presented with employees who can’t perform job functions because of physical or mental impairments, employers typically should proceed directly to an interactive process to determine whether reasonable accommodations are feasible. The good news is that, according to a survey from a few years ago, 56 percent of employers said accommodations under the ADA cost them nothing, while 37 percent experienced a one-time cost averaging $600. Bottom line: Accommodation is usually cheaper than litigation.
Examples of reasonable accommodations may include making existing facilities accessible, restructuring jobs, providing part-time or modified work schedules, acquiring or modifying equipment, reassignment to vacant positions, or providing a limited amount of time off. On the other hand, employers are never required to remove essential job functions, create new jobs, tolerate subpar performance or violations of company rules, or provide indefinite leave to accommodate disabled employees.
Interactive Process Steps
Generally, there are six steps to the interactive process:
- Analyze the job and determine the essential functions (well- crafted job descriptions are critical here).
- Identify job-related limitations (you may require the employee and his physician to provide information necessary to conduct this part of your analysis).
- Identify possible accommodations.
- Assess the feasibility of the accommodations.
- Implement the accommodation that is most appropriate.
- Follow up regularly.
Finally, don’t forget to document your interactive process and accommodation efforts. Otherwise, if the matter later goes to litigation, you may not be able to show the steps you took to try to work with the employee. As always, if you have any questions, you should consult an experienced employment attorney.