Accommodating Disabled Employees is Rarely a Hardship

Accommodating Disabled Employees is Rarely a Hardship

On March 29, the U.S. Equal Employment Opportunity Commission announced it had brought an action against a Georgia employer for failing to make accommodations for a disabled worker despite her repeated requests.[1]

In the U.S. District Court for the Northern District of Georgia case of EEOC v. Total System Services LLC, the EEOC alleged that the company violated federal law by denying the worker's requests to work remotely because of her heightened risk of contracting COVID-19. The agency also alleged the company's termination of her employment constituted unlawful retaliation against her for exercising her legal rights.

"The ADA requires employers to reasonably accommodate employees with disabilities," the EEOC's regional attorney said, "and this is not a suggestion." The EEOC's recent action highlights the importance of accommodating disabled employees in the workplace. Providing accommodations may at first seem inconvenient or even uncomfortable for companies and coworkers but, as many companies have come to realize, the cost of losing good workers may ultimately be far higher than the cost of any such accommodations.

The ADA's undue hardship standard should be set at such a high level that companies have little room to justify the denial of accommodations.

What are reasonable accommodations?

There was once a time when some companies may not have thought twice about firing workers whose disabilities prevented them from doing their jobs without accommodations.

Maybe the employee's limited vision made reading difficult, or their deafness prevented them from understanding verbal directions. Perhaps they struggled with sitting still for prolonged periods or needed someone to break instructions into smaller segments. Worse still, from an employer's point of view, a physical or mental impairment may have required them to perform their work from a different location.

Regardless of the reason, if they couldn't work as quickly or as seamlessly as their peers, such workers simply didn't stay on the job.

The Americans With Disabilities Act changed everything.[2] The 1990 law required employers to make reasonable accommodation for workers' disabilities, unless such accommodation would cause the employer undue hardship.

The law defines "reasonable accommodation" to include making facilities accessible to and usable by individuals with disabilities, as well as restructuring jobs, modifying work schedules and reassigning workers to vacant positions. It also includes acquiring or modifying equipment or devices, changing workplace policies, and providing readers or interpreters for individuals with disabilities.

Under the law, an accommodation might constitute an undue hardship for an employer if it caused significant difficulty or expense when considered in light of a number of factors, including: the nature and cost of the accommodation called for, the financial resources of the employer and the affected facility, the type of business involved, and the effect of the accommodation on the employer's operations and finances.

According to the World Health Organization, disabilities that limit workers may be physical, social, communicative or attitudinal, or they could be related to policy, programs or transportation.[3]

Barriers may include inaccessible physical environments, lack of assistive technology, stereotypes or negative attitudes about disability, and lack of systems and policies to help disabled workers.

Most accommodations are straightforward.

So, assuming an employer has knowledge of an employee's disability and received a request for reasonable accommodation, how far must it go to help a disabled worker?

For an employee with a compromised immune system that makes her vulnerable to COVID- 19, remote work should be an easy accommodation for the employer, at least according to the EEOC. In the action cited earlier, the agency likely has a strong case. If the pandemic taught us anything, it was that most types of work can be successfully performed away from the workplace with little cost to or disruption for companies.

But what about disabilities that affect essential job functions, or call for more drastic forms of accommodation? What must an employer do for workers who cannot see, hear or walk? The answer will depend on the nature of the work, the resources available, and the impact of accommodation on the company and its workers.

But for most of these workers, the accommodation options are fairly straightforward. Screen-reading software or braille texts can assist employees with impaired vision. Desks can be raised and aisles widened for workers in wheelchairs.

For workers with neurodevelopmental disabilities such as attention-deficit/hyperactivity disorder or autism spectrum disorder, the analysis may be more complicated.

Depending on the individual's abilities, autistic workers may require accommodations such as verbal instruction, job coaching or adjustments to the work schedule. In order to provide appropriate accommodation, it is incumbent on the employer to learn as much as possible about how the employee receives, processes and comprehends information.

Companies should treat all workers as assets.

Many companies have found that workers with intellectual or neurodevelopmental disabilities bring alternative ways of thinking that improve their work product. Bank of America Corp. brought together a group of 300 people with intellectual disabilities to create a support services team that manages fulfillment and external clients.[4] Microsoft Corp. has a hiring program specifically for neurodivergent people, such as those on the autism spectrum.[5]

Determining whether or how to accommodate a disability — whether physical or not — requires case-by-case analysis, but it should also cause the employer to take a broader look at how disabled employees can affect the workplace. Instead of solely considering the cost of accommodating disabled workers, companies should be asking what the cost is if they don't hire such workers.

A 2020 report by Accenture found that companies with disability engagement programs grew sales nearly three times more than other companies and grew profits more than four times faster.[6]

Most accommodations are reasonable.

With the advent of modern technology, there is very little that can't be accommodated in the workplace. Today's courtrooms use technology to assist hearing-impaired and non- English-speaking jurors and witnesses. Assuming appropriate technology is available and affordable, well-resourced companies that know of workers' disabilities should be legally required to provide the same level of accommodation for those workers.

A May 4 report from the U.S. Department of Labor's Office of Disability Employment Policy found that nearly half of workplace accommodations made for people with disabilities could be implemented at no cost to employers.[7] Of those that incurred a one-time cost, the median expenditure was only $300.

The DOL report analyzed employer data collected between 2019 and 2022 and concluded that not only were costs minimal, the benefits of employing disabled workers far outweighed any costs. These benefits included retention of valuable employees, improved productivity and morale, lower workers' compensation and training costs, and greater diversity.

Of note, employers also reported that many employees with disabilities bring unique problem-solving skills to their jobs by virtue of having to manage their disabilities in an often unfriendly world.

So when an employer terminates a worker with a known disability — whose only issue is perhaps an inability to read, hear or understand an instruction — has it violated its obligations under the ADA?

Assuming the worker is otherwise capable of performing their assigned duties, the employer should have an affirmative obligation to look for a solution to the problem. This does not require rocket science or reinventing the wheel. Technology and tools are abundant, available and affordable.

The more problematic issue may be the employer's attitude toward its disabled workers. An employer that refuses to consider or adopt alternative technologies to help its workers stay productive and employed is simply perpetuating age-old stereotypes and stigmas. Instead of keeping a willing worker gainfully employed — and helping its own bottom line — that company is harming its bottom line and its position in society.

Given our current knowledge of all forms of disability, employers who know when workers are dealing with physical, mental and intellectual disabilities have no excuse for not using technology and other available tools to keep productive workers on the job.

In this day and age, the ADA's definition of "undue hardship" should be an extremely high bar to overcome.

Kamran Shahabi is a managing partner at Valiant Law.

The opinions expressed are those of the author(s) and do not necessarily reflect the views of their employer, its clients, or Portfolio Media Inc., or any of its or their respective affiliates. This article is for general information purposes and is not intended to be and should not be taken as legal advice.

[1] https://www.eeoc.gov/newsroom/eeoc-sues-total-systems-services-disabilitydiscrimination-and-retaliation.

[2] 104 Stat. 327 - Public Law No. 101-336 (07/26/1990), https://www.congress.gov/bill/101st-congress/senate-bill/933/text.

[3] http://apps.who.int/iris/bitstream/handle/10665/42407/9241545429.pdf;jsessionid=37F201BE13BBDBFFE66E6B79F2758C75?sequence=1.

[4] https://about.bankofamerica.com/en-us/what-guides-us/supportservices.html#fbid=QmZKWx2K2HP.

[5] https://www.microsoft.com/en-us/diversity/inside-microsoft/crossdisability/hiring.aspx#coreui-heading-sp7tqqo.

[6] https://www.accenture.com/_acnmedia/pdf-142/accenture-enabling-change-gettingequal-2020-disability-inclusion-report.pdf.

[7] https://askjan.org/topics/costs.cfm.

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