Hiring & Accommodating Workers with Disabilities

Hiring & Accommodating Workers with Disabilities

There are a number of legal requirements and prohibitions an employer must take into consideration when evaluating a job applicant and extending an offer of employment, as well as throughout the course of the employee's career. When an applicant or an employee has a disability, these laws must still be followed, but an employer must also comply with federal and state statutes designed to protect disabled individuals in the workforce. Two of the major areas where an employer must be cognizant of the rights of disabled individuals are the hiring process and the necessity of reasonable accommodations.

Important reminder: Not all disabilities are visible, and many individuals suffer from disabilities such as arthritis, asthma, a closed head injury or a learning disability. Get to know an individual before jumping to the assumption that, based solely on their looks, they are not disabled.

Interviewing a disabled applicant—what are the boundaries?

• Under the Americans with Disabilities Act (ADA), an employer is limited in the type and scope of questions that it may ask of a disabled applicant. As a general rule, interview inquiries directed at disabled individuals should focus on the applicants' ability to perform the essential functions of the job in question, not on their disabilities.

  Example: Suppose a deaf individual comes to you to interview for a sales position. Do not start off the interview by saying, "I understand you are deaf. I can't imagine that you will be able to give a sales presentation to any of my customers. I'll show you the way out, and have a great day." Instead, say "My profits, and your salary, are conditioned on the ability to make sales. Can you demonstrate how you would communicate a killer sales presentation to a big client?"

• When interviewing disabled applicants an employer MAY ask:
  
  
  • If they are able to perform the essential functions of the job;
    
    
  • If they are able to meet the attendance requirements of the job;
    
    
  • How many days of leave they took in the last year, but NOT if they will need to take advantage of leave laws if you choose to hire them; and
    
    
  • For a description or demonstration of how they will perform the essential functions of the job, if they have a known disability which you reasonably believe may interfere with their job performance.

    Example: You are interviewing applicants for an office position, which would require them to sit at a desk and file documents for the majority of the day. An individual with only one arm (and no prosthetic device) comes in for an interview. You may ask them to describe or demonstrate how they will be capable of repeatedly filing documents.

• In interviewing disabled applicants an employer MAY NOT ask them:
  
  
  • If they suffer from a particular disease;
    
    
  • The severity of their disability (if the disability is visible);
    
    
  • To explain what condition causes their disability;
    
    
  • The prognosis of their disability;
    
    
  • If they have a disability that will prevent them from performing the job;
    
    
  • How many sick days they had in the last year;
    
    
  • If their disability will require them to take advantage of special leave laws, but MAY ask how many days of leave they took in the last year; or
    
    
  • If they will need to undergo special medical treatments.
    
    
• An employer may not ask an applicant with a visible disability which will not interfere with the job to describe or demonstrate how they would perform the job UNLESS it is standard practice for the employer to request a demonstration from all of the applicants.

  Example: In the situation described above for the office position, if the disabled applicant has only one leg, rather than one arm, you may not ask him or her to describe or demonstrate how he or she would be capable of filing papers unless you ask that of all applicants.

• If an applicant admits, or is unable to demonstrate, that he or she can perform the essential functions of the job position, either with or without reasonable accommodations, he or she are not qualified for the position and the employer need not extend him or her an offer.

Accommodating a disabled employee—what needs to be provided?

• The ADA requires employers to provide "reasonable accommodations" to employees in their workforce who suffer from a disability or disabilities. Under the ADA, a disability is defined as any long-term or permanent physical or mental impairment that substantially limits one or more life activities.

  Warning: Do not presume that an individual who is receiving Social Security Disability benefits is protected under the ADA. Although that may in fact be the case, the definitions of disability under the ADA and the Social Security Act are in fact different in their applications.

• The ADA does not require an employer to provide the best possible accommodation to the employee. They are required only to provide a reasonable accommodation that is not unduly burdensome to the employer. What constitutes a reasonable accommodation must be decided on a case-by-case basis. In accommodating an employee, the employer is not required to provide personal-use items such as eyeglasses or hearing aids to disabled employees. However, employers have, in the past, made special wheelchairs or scooters available for use at work for individuals with disabilities that affect their mobility.

  Example: A reasonable accommodation for an employee with moderately limited mobility may require the installation of handicap railings in a bathroom stall and nothing more. However, an individual with severely limited mobility may require more help in being a productive member of a workforce, such as the provision of a chair with wheels, an office close to the bathroom, or the construction of wheelchair ramps so the employee can enter and exit the building with ease.

• An employer should not assume that a reasonable accommodation will be expensive. In fact, some accommodations will be cost-free to the employer.

  Example: If an individual with severe asthma has difficulty working in hot temperatures, the employer could consider providing them with a fan at a minimal cost or, if the employer operates on a 24-hour basis, it could consider transferring the employee to the night shift, when temperatures would much likely be cooler.

  Example: If an individual working as a machinist has difficulty manipulating small knobs on a piece of equipment, the employer could see if providing rubber-tipped gloves would enable the employee to operate the machinery more comfortably and with a higher productivity level.

• Employers should not be afraid to ask the individual about his or her capabilities and any ideas which he or she may have for accommodating their disability. Such persons have a much better understanding of their abilities and simply asking them for their input and including them in the process will be much easier than the employer alone trying to decide what may be an appropriate accommodation.
  
  
• If an employer and employee are having difficulty in developing a plan for reasonable accommodations, help is available. The Job Accommodation Network (JAN) of the President's Committee on Employment of People with Disabilities can provide advice on workplace accommodations and the employment provisions of the ADA. JAN can be reached toll-free at 800-526-7234 or 800-ADA-WORK (800-232-9675).
  
  
• Employers should remember that accommodating a disabled employee does not need to be a negative experience. Disabled employees, as with any other employees, are able to offer a wealth of skills and experience to the workforce if they are given an opportunity to participate. In addition, the inclusion of disabled individuals may often raise the morale of other employees and the use of accommodations may increase safety levels for the entire workforce.

A true story: The President's Commission on Employment of People with Disabilities has reported that a well-drilling rig operator's back problem was being aggravated by constant vibration in the seat of his rig. A scientifically designed mechanical seat that absorbed the majority of the vibrations was installed in the rig. The employee's back problem was no longer aggravated. The seat cost the employer approximately $1,100, and was such a success that all of the employees started to use the seat in order to prevent additional trauma or new injuries.

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