Accommodating Disabilities

Accommodating Employees and Customers with Disabilities: Big Impact on Small Business

The Census Bureau estimates that one-fifth of Americans are disabled, including 34 million who are 18 or older. That includes a wide range of disabilities - - some easily discernible, such as blindness, loss of hearing, and mobility impairment, as well as chronic diseases and mental disabilities.

In California, the Fair Employment and Housing Act (“FEHA”) protects employees with physical or mental disabilities by requiring employers to grant a disabled employee a reasonable accommodation which will enable him/her to work despite his/her limitation(s). Sounds straightforward and just, right?

As the saying goes, the devil is in the details - and many small businesses have a devil of a time complying with the far-reaching details of this law.

Many Calfornia employers do not understand that they must comply with the FEHA which provides broader protections to employees than does the federal Americans with Disabilities Act of 1990 (“ADA”). There are significant differences in the two Statues, beginning with the very definition of “disability” - and those differences frequently trip up uninformed employers.

The issue, according to pro-business advocates, is not whether businesses should accommodate employees with disabilities, but how. That's where it gets tricky.

Although the FEHA does not require employers to accommodate an employee who cannot perform the “essential” or core functions of his/her job even with an accommodation, or grant an accommodation which imposes an undue hardship upon the business, it contains some clear restrictions on employer conduct:

Employers may not ask job applicants about the existence, nature, or severity of their disability. Employers may only inquire as to whether or not the applicant is able to perform the essential functions of the position applied for, with or without a reasonable accommodation.
Employers may not require a job applicant to submit to a medical or pyschological examination before extending an offer of employment.
A job offer may not be conditioned upon the results of a medical examination, unless it is required for all entering employees in that job classification and consistent with the employer's business needs.

But once an applicant with a disability is hired - or an existing employee becomes disabled - the employer must, subject to the exceptions noted above, engage in a good faith “interactive process” (a dialogue or exchange) with the employee to devise and implement an effective “reasonable accommodation.” Examples of accommodation include making facilities more readily accessible and usable; job restructuring or modifying work schedules; reassignment to a vacant position; acquiring or modifying job-related equipment; providing readers or interpreters; and changing examinations or examination conditions, job training materials or policies.

“Employers cannot just make unilateral decisions about what adjustments need to be made. That's where they often get into trouble, even when they have the best of intentions,” explained Suzanne Ambrose, Director of the California Department of Fair Employment and Housing (“DFEH”), which accepts, investigates, and conciliates complaints of employment discrimination because of disability.

“In fact,” she says, “it's important to not only solicit the employee's input into job and workplace redesign, but their medical professional's, as well. The majority of the complaints we receive in this area could be avoided if employers engaged more interactively in the process of arriving at a reasonable accommodation,” she said.

To learn more, visit the DFEH's website at www.dfeh.ca.gov.

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The ADA requires that persons with disabilities have equal access to goods and services available to the public. But when it comes to making premises more accessible to patrons and employees with disabilities, businesses soon may face major new challenges. In the past, some have been able to obtain relief from the requirements for existing properties considered historic, or if modifications would prove too expensive, placing an “undue burden” on the business.

However, the Department of Justice is proposing new rules that could significantly up the ante.

“One of the biggest changes being considered would require businesses to provide wheelchair access through the employee work areas,” said a report of the National Federation of Independent Businesses. “This rule would apply to businesses regardless of whether they have an employee that uses a wheelchair. In addition, the new rules would require that fire alarms in work areas have both visible (a flashing light) as well as audible alarms. Other changes would require handrails on both sides of ramps and/or stairwells, lower the height to 48 inches from the current 54 inches for reachable items such as light switches, paper towel dispensers, pay telephones, etc., increase the number of accessible van parking spaces required in a parking lot, change requirements for accessible drinking fountains, and alter the measurements for accessible restrooms.”

The report says that many of the requirements “will apply to existing businesses and could require retrofitting...businesses potentially affected by the new rules include retail establishments, restaurants, hotels, movies theaters, and any business with employees - disabled or not.”

It's likely that most small businesses in Calfornia have not felt the full impact of the ADA, but if the proposed changes are passed, almost no business will be untouched. Trade groups are calling for a major overhaul of the ADA, but it probably won't happen any time soon. To avoid lawsuits - which are often far more costly than modifying premises and practices - the best course is full compliance.

For more information about the ADA, visit the Equal Employment Opportunity Commission Website at:

http://www.eeoc.gov/types/ada.html;

The U.S. Department of Justice Web site at:

www.usdoj.gov/crt/ada/business.htm#anchor-bbriefs

or the National Federation of Independent Businesses Web site at:

www.nfib.com/page/Search?q=ADA

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