Lisa Stephanian Burton is the leader of the labor and employment practice in the Boston office of Morgan Lewis. She defends employers in litigation and counsels on labor and employment issues that include wage and hour, discrimination, leaves of absence and other state and federal laws and regulations. Lisa also advises employers on business immigration matters. Here she discusses the basics of complying with the ADA and Massachusetts law regarding employees with disabilities.
What businesses are required to comply with provisions of the ADA?
Since July 26, 1994, the ADA has applied to all employers, including state and local governments employing 15 or more employees. Many states have a similar statute with lower employee coverage thresholds.
What types of disabilities are covered under the act?
All types of physical or mental impairments are covered if they substantially limit a major life activity, such as, according to the ADA, “hearing, seeing, speaking, walking, breathing, performing manual tasks, caring for oneself, learning or working.” In addition to having covered disability, it is important to remember that the employee or applicant still must meet the employer’s requirements for the job, such as “education, employment experience, skills or licenses,” and he or she must be able to perform the essential functions of the position with or without the help of a reasonable accommodation.
What accommodations are employers required to provide for disabled workers?
Regrettably, there is no simple answer to this question. What is reasonable to the employee may not be reasonable to the employer. The legal answer is any change or adjustment to a job or work environment that will permit a qualified applicant or employee to participate in the application process, perform the essential functions of a job or enjoy the privileges or benefits of employment just the same as employees without disabilities. Examples of accommodations, as provided by the ADA, include:
- Providing or modifying equipment or devices.
- Restructuring the job. This does not include eliminating essential functions.
- Adjustment to the work schedule.
- Reassignment to a vacant position.
- Adjusting or modifying examinations, training materials or policies.
- Providing readers and interpreters.
- Making the workplace readily accessible to and usable by people with disabilities.
How does the ADA define ‘undue hardships’ when determining if an employer must provide accommodations for a disabled employee?
Undue hardship focuses on undue difficulty or expense to the employer in making the accommodation. However, a number of factors go into this analysis, including the nature and cost of the accommodation in relation to the size, resources, nature and structure of the employer’s operation. Generally, it will be more difficult for larger employers to show that a proposed accommodation is too costly or burdensome.
In addition to the federal law, are there any city or state laws concerning disabled employees that small business owners in Boston should be aware of?
Yes! As mentioned above, there are state employment laws that cover disabilities and, in Massachusetts, the statute is M.G.L. Ch. 151B. An employer only needs to have six employees to be subject to the law’s requirements. The key part of the reasonable accommodation process under state and federal law is the dialogue that needs to happen between the employee and the employer. This process should be documented and must truly involve an interactive process. If an employer is faced with a claim, it will want to show that it tried to work with the employee rather than just concluding the person couldn’t do the job.
This article was written by Gillian Burdett for Small Business Pulse