Did you know that, under some circumstances, you may be guilty of employment discrimination if:

1. You refuse an employee's request for time off for treatment of certain medical conditions even if the employee does not have available leave.

2. You do not hold open an employee's job while the employee is out on leave for treatment of a disability.

3. You do not change supervisory methods to accommodate an employee's disability.

4. You do not provide an employee with a modified work schedule so that the employee can obtain, or recuperate from, medical treatment related to a disability.

These are just a few of the hundreds of difficult issues faced by employers when dealing with employees who have physical or mental disabilities. This article will briefly discuss the complex and evolving obligations of employers to accommodate employee disabilities in the work place.

Background

Both federal and Maryland law prohibit employers from discriminating against employees and applicants for employment on the basis of physical or mental disabilities as long as the employee or applicant meets all bona fide occupational qualifications and is able to perform the essential functions of the job, with or without "reasonable accommodation." The concept of "reasonable accommodation" is central to both the federal Americans With Disabilities Act ("ADA") and the Maryland Human Relations Act. The duty of "reasonable accommodation" requires an employer to make changes to the work place or work rules to help a person with a disability to perform the essential functions of the job, unless making necessary changes would be an undue burden on the employer.

"Reasonable accommodation" does not require an employer to lower uniformly applied production standards for a job. It does not require the employer to eliminate the most important parts of the job. What reasonable accommodation does require, however, is that employees with proven disabilities be provided with reasonable and effective assistance in meeting production standards and in being able to perform the critical functions of the job.

The EEOC is responsible for enforcing the employment discrimination provisions of the ADA. On March 3 the EEOC issued a 70 page Enforcement Guidance that is the EEOC's interpretation of the employer's duty of "reasonable accommodation." The Enforcement Guidance is not law and is not binding on employers. In fact, some interpretations in the Guidance contradict court decisions on the same issues. But, the Enforcement Guidance now guides EEOC investigators when they review claims of employment discrimination under the ADA. It remains to be seen whether the Maryland Human Relations Commission will follow the EEOC Enforcement Guidance when investigating claims of disability discrimination brought under State law. Employers who ignore the Enforcement Guidance do so at their peril.

The Types of Accommodations Required

Once an employer learns that an employee has a disability and requires some accommodation, the Guidance suggests different types of accommodations that employers may be required to provide in appropriate circumstances. The key is that the accommodation assist the employee to effectively perform the essential functions of the job. Accommodations can include, but are not limited to:

1. Making existing facilities accessible for persons with physical disabilities and mobility limitations.

2. Reallocating or redistributing non-essential functions of the job, or changing when and/or how any job function is performed.

3. Allowing an employee to work a part-time or modified work schedule.

4. Altering leave policies to allow an employee to receive or recuperate from medical treatment, or tend to other matters related to the disability.

5. Acquiring or modifying equipment that is used to perform the job by a person with a disability.

6. Changing tests, training methods and materials, or work place policies.

7. Providing qualified readers or interpreters for persons with sight or hearing disabilities.

8. Reassigning an employee to a vacant position.

9. Changing supervisory methods.

Remember, accommodation must be provided unless it presents an undue hardship to the employer.

What is Undue Hardship to an Employer?

An employer is required to provide a reasonable accommodation to a person with a disability as long as the accommodation does not cause an "undue hardship" to the employer. Essentially, the burden is on the employer to show on a case by case basis that providing a specific accommodation would cause the employer significant difficulty or expense. Several factors generally are considered in deciding whether an undue hardship would be presented by a particular accommodation:

1. The nature and cost of the accommodation.

2. The overall financial resources of the business, the number of employees in the business, and the effect of the accommodation on the expenses and resources of the business.

3. The size and nature of the employer's business, the number of employees, and the type and location of other facilities of the employer.

4. The impact of the accommodation on the employer's overall business operations.

The common sense approach to the question of "undue hardship" is that, in most instances, the extent of accommodation required in any situation will increase as the size of the employer's business, revenues and work force increases.

What is an Employer to Do?

There are several common sense things that an employer can, and should, do in order to prevent becoming entangled in defending a claim of disability discrimination:

1. Be aware that employees with disabilities may need to be treated differently from other employees in order to help them perform their jobs.

2. Be sensitive to which employees may have a disability. When a person with a disability is having difficulty at work, the employer should take the initiative to see whether there is anything that can be done to help the employee do the job that's expected.

3. When a request for an accommodation is received from an employee who claims to have a disability, or from someone on the employee's behalf (such as physician, rehabilitation counselor or relative), engage in an informal dialogue with the employee. This dialogue should clarify whether the employee is disabled, and, if so, to determine the employee's legitimate needs and the appropriate accommodation that will not present an undue hardship. While the employee may suggest a desired accommodation, the employer may provide some other accommodation that still will effectively address the specific limitations and work place barriers presented by the employee's disability.

4. Seek assistance from legal or human relations professionals before rejecting all requests for accommodation from an employee. In most instances early resolution of reasonable accommodation issues will be far preferable that the expense, difficulty and business disruption involved in defending a disability discrimination claim. Although employers win most disability discrimination claims that end up in court, this probably is because those claims that have any possible merit have been resolved through discussions between the employer and employee.

Conclusion

Employers must provide reasonable accommodations to employees with disabilities to help them perform the essential functions of their jobs, as long as an undue burden is not caused to the employer. Engaging in an informal interactive process with the employee is the most effective, and least costly, way for an employer to determine the whether the employee is entitled to an accommodation and what accommodation will be effective, yet not unduly burdensome to the employer.

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This article is not intended to provide legal advice, but rather to provide information concerning recent developments in the field of employment law. Questions regarding individual situations or problems should be discussed with legal counsel.