To know whether your co-op is in compliance with the employment provisions of the ADA, see if everyone involved in your hiring process knows which of the following questions are legal to ask on an application form or in an interview:
- Do you have any disability which would prevent you from performing certain work?
- Please list any conditions for which you have been treated in the past 5 years.
- Do you have any of the following conditions: chronic back pain, carpal tunnel syndrome, etc.
- Have you ever had back problems that might interfere with lifting?
- Is there any health-related reason that would prevent you from doing the type of work for which you are applying?
If you answer “none of the above,” you are aware of the limitations placed upon employers by the ADA. But how can you be sure that you’re hiring a person who can in fact do the job, without discriminating, intentionally or not, against people with disabilities?
To answer that question, we have to understand three key concepts of the ADA: “essential functions of the job,” “reasonable accommodation” and “significant risk.” And before that, we need to know who is considered disabled under the Act.
Who is disabled?
A disabled person is defined as someone with a physical or mental impairment that substantially limits one or more major life activities, e.g., walking, speaking, hearing, seeing, breathing, learning, caring for oneself, working. Such an impairment must be considered major and permanent, not, for example, a broken leg or pregnancy. The definition is also expanded to those with a record of having such an impairment, e.g., a person treated successfully in the past for cancer, alcoholism or a back injury. Finally, the Act covers people regarded as having such an impairment, e.g., a gay man who is assumed (even if incorrectly) to have AIDS, or a person with high blood pressure who is assumed to be unable to handle a stressful management position. The Act was specifically amended to clarify that it covers alcoholics or drug abusers undergoing treatment but not currently practicing addicts.
Here are some guidelines to help employers decide whether a function or task is essential to the job:
- The reason the position exists is to perform that function.
- There are a limited number of employees available to whom the function could be distributed.
- The function is so highly specialized that the person in thejob was hired for her expertise or ability to perform that function.
For example, an essential function of a stocker’s job is to handle bags and boxes weighing up to 60 pounds. This involves unloading trucks, putting overstock into storage and placing products in coolers, shelves and bins. A person who can’t perform those functions would not be qualified for the job. In a recent court case, consistent daily attendance was considered an essential function of a job. It is advisable to have a written job description that lists essential functions of the job before you recruit to fill a position.
Employers are expected to do what they can to reduce barriers to employment related to a particular person’s disability. It need not be the best possible accommodation as long as it’s effective in allowing the person to do the job.
Examples (in italics) of reasonable accommodation:
- Make existing facililities accessible: make offices and bathrooms wheelchair accessible.
- Reallocate non-essential functions: have other staff answer customer questions if a stocker has a speech disability.
- Provide part-time or modified work schedules: allow time off for people needing regular medical treatments.
- Reassign an employee disabled on the job to a vacant position s/he can fill.
- Acquire or modify equipment or devices: lower a register stand to wheelchair height or get a TDD phone for a hearing-impaired person to call in orders.
- Provide readers or interpreters for vision or hearing-impaired people.
The ADA does not require an employer to eliminate or reallocate essential functions of the job. Moreover, the Act lets employers off the hook if they can prove that providing an accomodation would create an “undue hardship.” To determine undue hardship, the cost of the accommodation, the overall financial resources of the company and the number of people employed can be considered.
It is the responsibility of the individual with a disability to inform the employer whether an accommodation is needed, and if so, of what nature. It is the employer’s responsibility to not assume that a person can or cannot do a particular task until the employer has explored the subject with her/him.
You may refuse to hire a person with a certain disability for a particular job if you have reason to believe that there is “a significant risk of substantial harm” to that person or others. In determining whether a significant risk exists, you must consider the capabilities of the individual involved, you must base your assessment on objective medical or other factual evidence, and the risk must be current.
The ADA is clear that you cannot speculate that a person’s disability may indicate a greater risk of future injury or absenteeism, or may cause future workers compensation costs.
A live issue for many co-ops will be “bad backs” in jobs involving frequent lifting. According to the EEOC Technical Assistance Manual, the only condition under which you can refuse to hire someone solely because of her/his back problems is if s/he has “a medical history which reveals that the individual has suffered serious multiple re-injuries to her back doing similar work which has progressively worsened the back condition; employing this person in this job would incur significant risk that she would further injure herself and such an individual may be rejected.”
What can you ask?
On the application, you could ask, “Are you able to perform the essential functions of the job(s) for which you are applying, with or without reasonable accommodation?”
In the interview, you may describe or demonstrate the specific functions of the job and ask whether the applicant can perform these with or without reasonable accommodation. For example, “Are you able to pick up boxes and bags weighing up to 50 pounds and place them on storage shelves up to 6 feet in height — with or without a reasonable accommodation?” This must be asked of all applicants, not just a person who appears to have a disability.
If a person has a really obvious disability that appears to seriously interfere with peformance of an essential job function, you may ask her/him to physically demonstrate how they would perform that function, without having to ask all applicants to do so.
You may not ask whether an applicant will need time off for medical treatment. Instead, lay out the regular work hours, the co-op’s leave policy and any special attendance needs of the job, and ask the applicant if she can fulfill these requirements. In every aspect of the hiring process, the precept to follow is: never assume what a person can or cannot do without asking her/him.
For more detailed information, you can order the Americans with Disabilities Act Technical Assistance Manual from a government bookstore in your city, or by writing the Superintendent of Documents, P.O. Box 37 1954, Pittsburgh, PA 15250-7954.
Readers also should check whether their state laws on disabled rights apply to smaller businesses than those in federal law.