Wisconsin Attorneys Defending Workers Protected by the Americans with Disabilities Act The Americans with Disabilities Act
The American with Disabilities Act (“ADA”) prohibits employers with fifteen or more employees from discriminating against individuals with disabilities and requires employers to provide a reasonable accommodation (explained more fully below) that allows disabled employees to be able to perform the essential functions of her or his job. A reasonable accommodation is often determined through an interactive process and must be provided to the disabled employee unless doing so would cause the employer “undue hardship” (also explained below).
What makes an employee “disabled” under the ADA?
Under the ADA, an employee is considered “disabled” primarily under two conditions. Either the employee has a disability or the employer believes that the employee has a disability. A disability under the ADA is a serious health condition that affects major life activities. A serious health condition includes any illness, injury, impairment, or physical or mental condition that involves either inpatient care (including any overnight stay in a hospital and continued treatment in connection with that inpatient care) or continuing treatment by a health care provider for that disability. The ADA recognizes two forms of discrimination: disparate treatment and failure to accommodate the individual with a disability.
Disparate Treatment
Disparate treatment occurs when an employer adversely affects the opportunities available to or the status of an applicant or employee because of that employee’s disability, whether the disability is actual or just perceived by the employer to exist. Disparate treatment can take the form of segregation, limits on the opportunities of the employee, or classifying a job applicant or employee in such a way that it negatively affects the terms and conditions of employment. Some examples of adverse treatment can include: Refusal to hire the individual Disciplinary action for taking time off for a disability or requesting an accommodation for the disability Being denied promotion due to the disability or being demoted Reduction in pay rate Being terminated after disclosing a disability to the employer or because of the employer’s perception of an employee’s possible disability or Being terminated after requesting an accommodation for a disability
Failure to Accommodate
The ADA requires employers to provide otherwise qualified employees with either a mental or physical disability a “reasonable accommodation” for that disability. To establish a reasonable accommodation, the employer must engage in an “interactive process” with the employee to determine a reasonable accommodation that both allows the employee to perform the essential functions of his or her job, without imposing an “undue hardship” on the employer.
What is a “Reasonable Accommodation?”
A reasonable accommodation is any change made by the employer to the job, the way the job is being done, or the work environment that allows an individual with a disability, who is otherwise qualified and capable of performing that job to perform the essential functions of that job. Depending on the disability of the employee, reasonable accommodations can include, but are not limited to, the following: Flexible or altered work schedules Additional furniture, like a chair or standing desk, being provided at the workstation Modifications to facilities used by employees to make them accessible to disabled employees An employee being able to lie down or take sporadic breaks throughout the day and even Being excused from certain tasks, so long as those tasks are not “essential functions” of the job or impose additional tasks be given to other employees
What should the Interactive Process look like?
When an employee brings her or his disability to the attention of their employer, the employee can also request a reasonable accommodation to her or his job in order to ensure that they can perform the essential functions of that job. The employer can then either accept the proposed accommodation or suggest alternative accommodations to the employee. This process is required, by law, to be a back forth conversation as the employee and employer attempt to find a reasonable accommodation that the allows the employee to continue employment in her or his role without being creating an undue hardship on the employer.
What is Considered an Undue Hardship on the Employer?
For an accommodation request to produce an undue hardship on the employer, that accommodation must produce a significant difficulty or expense on the employer. Any analysis into whether a requested accommodation creates an undue hardship on the employer is specific to the employer’s business model, the employee’s position and essential duties, and the employer’s size and financial security. Whether an accommodation presents an undue hardship to the employer is ultimately determined by the employer. However, an employer may not just claim that an accommodation produces an undue hardship to avoid providing an accommodation to the employee. If a requested accommodation does impose an undue hardship on the employer, the employer must continue in the interactive process and may not simply walk away from the process because a requested accommodation is decided to be unreasonable. Instead, the employer is required to offer an alternative accommodation that would be reasonable to the employer while still allowing the employee to perform the essential functions of her or his job. If you believe you have been subjected to discrimination based upon a disability or have any questions regarding your rights in the workplace, please contact our firm at either our Madison Offices, at (608) 257-0040, or Milwaukee Offices, at (414) 271-8650.
If you believe you have been subjected to discrimination based upon a disability or have any questions regarding your workplace rights, please contact us to discuss your situation or legal rights with a Wisconsin employment attorney.
Please call a Madison employment discrimination attorney directly at (608) 257-0040 or a Milwaukee employment discrimination attorney at (414) 271-8650, or email us via our Contact Page.