Call Us Today at (323) 460-4900
1130 N La Brea Ave West Hollywood, CA 90038
 

Hiring the Disabled: What Are Reasonable Accommodations?

The question of how far an employer must go to accommodate a disabled employee is at the very heart of the Americans With Disabilities Act.  Answering that question starts with understanding the term “reasonable accommodations.”

An accommodation is any change in the physical workplace, or in the methodology usually employed to perform a job, that allows a qualified individual with a disability to apply for and hold that particular job.

 There are three categories of reasonable accommodations:

  • changes to a job application process that enable a qualified disabled applicant to be considered for the position.
  • changes to the physical work environment, or to the manner in which a job is normally performed, that permit a qualified disabled individual to perform the essential functions of that job.
  • changes that allow a disabled employee to take advantage of all of the benefits and privileges of employment in the same way that all non-disabled employees do.

The term “reasonable” refers to the change being “feasible” or “plausible.”  The only exception to an employer’s obligation to provide reasonable accommodation is if it would cause “undue hardship” to the employer.  Undue hardship means that an employer would face great difficulty or expense to make the accommodation because they lack the resources or ability to provide the requested accommodation.  Undue hardship also refers to reasonable accommodations that are so extensive, substantial, or disruptive, that they would fundamentally alter the nature or operation of the business.

Keep in mind that in spite of the undue hardship clause, there are still a number of reasonable accommodations that do change operations, on some level, that the employer is required to make.  The majority of them have to do with job performance:

  • Job Restructuring – While an employer never has to reassign essential functions of a job in order to accommodate a disabled employee, they are required to reassign secondary job functions that an employee is unable to perform because of a disability.  They must also change when and how any function is performed, whether it is essential or secondary, to accommodate a disabled employee.

By the same token, if an employer restructures a job to eliminate some secondary functions, the employer can require the disabled employee to assume other secondary functions that they can perform.

  • Leave – Allowing the disabled employee to use accrued paid leave or unpaid leave when it is necessary because of their disability is another reasonable accommodation.  An employer does not have to provide paid leave beyond that which they normally provide to employees.  Employers can allow a disabled employee to use all of their accrued paid leave before providing unpaid leave.
  • Modified Scheduling – This includes changing arrival or departure times, providing periodic breaks, and changing the time certain functions are performed.  An employer must provide a modified schedule for a disabled employee, even if  they don’t provide such schedules for other employees unless it represents an undue hardship.
  • Modifying Personnel Policies – It would be a reasonable accommodation to modify a policy requiring employees to schedule vacation time in advance if a disabled employee needed to use accrued vacation time immediately because of disability- related medical problems, unless it presents an undue hardship.  In addition, an employer may be required to provide additional leave to an employee with a disability in spite of their leave policy, unless it presents an undue hardship.
  • Reassignment – Reassignment to a vacant position for which the disabled employee is qualified is also considered a reasonable accommodation.  This must be provided to an employee whose disability makes it impossible for them to continue to perform the functions of their current position.  The only exception is if the employer can prove that it would cause an undue hardship. 

Preventing Violence Before It Happens Through Pre-Employment Screening

Violence in the workplace has become an increasingly more common occurrence. According to the Bureau of Labor Statistics in its 2004 report entitled Fatal Occupational Injuries by Event or Exposure, 1998-2003, there were 631 documented workplace homicides in 2003. Workplace homicides are the second leading cause of death in the workplace and they make up 16% of all occupational fatalities.

With statistics like these, it is the duty of every employer to make violence prevention a number one priority. Avoiding potential violence should begin with the hiring process. This is the company’s opportunity to weed out any violent individuals before they get a foothold in the workplace.

The pre-employment screening process begins with the application. If an applicant omits information or there are gaps of time in the area of job history, the applicant should be instructed to fill in the missing information. If the applicant cannot provide the information, the employer needs to determine when and if it can be provided, note it on the application and then follow through with getting the information if the person selected is to be given an employment offer. Ensure that all of an applicant’s information is on hand before any offer is made.

The interviewer will have the most significant opportunity to assess the applicant’s stability. Begin with the person’s overall physical appearance and grooming. Is it interview appropriate? The next level of assessment involves body language and eye contact. While the applicant is speaking, are they looking you in the eye while answering questions in a relaxed manner? What is your own comfort level during the interview? What is the applicant’s response level to questions? Do they answer the questions asked or are they evasive? Do they provide too little information or do they go out of their way to give an elaborate explanation? By discussing what an applicant liked or disliked about the tasks associated with different jobs they held and why they left those jobs, an interviewer can often get a sense of possible aggression towards the company that if pushed far enough can manifest itself in workplace violence.

If the applicant seems acceptable, then the next step is to do a thorough background check. This is the major area where most companies fall short in the evaluation process. If you do not get an immediate response from a past employer or a reference, follow up until you do. Don’t assume that the failure is due to being too busy to respond. Sometimes the lack of response is avoidance. It is not unheard of for one company to pass a problem employee off on another. To investigate further, in addition to the telephone background check, you can also examine court records, credit reports and driving records.  However be advised that you need a signed release from the applicant to conduct this type of background screening. Your corporate counsel should be your consultant in the development of any pre-employment screening methodologies to be sure they do not violate existing laws.

Many companies also conduct drug testing as part of their pre-employment screening process. Drug testing identifies individuals who have the potential to become problem employees.  It is easier to eliminate individuals on the basis of failing a drug test prior to employment then it is to terminate them once they have been employed. While drug testing doesn’t eliminate all potential problem employees, it does reduce their number.

No matter what procedures you use to screen applicants, the important thing to remember is that you must follow through. If you only make a half-hearted attempt, it’s the equivalent of no attempt at all.