by Tim Twigg and Rebecca Crane
For more on this topic, go to www.dentaleconomics.com and search using the following key words: disability compliance, Americans with Disabilities Act, Tim Twigg, Rebecca Crane.
Of the various employment compliance laws, the rules and requirements related to disabilities are some of the most misunderstood and frustrating for employers. Why? It's mainly because there are no simple, black–and–white answers.
Trends show that discrimination claims are rising rapidly. What are your risks? The latest numbers indicate that complaints with the Equal Employment Opportunity Commission were up 15% overall for 2008. Specifically, disability claims were up 9.7%. Running afoul with these laws can result in serious financial hardship.
When confronted with an employee who is disabled (or is claiming a disability), dentists often just want the bottom line answer in the form of a “yes” or “no.” Unfortunately, that doesn't exist when it comes to the area of disabilities.
Frustration compounds when the employee who claims he or she is disabled has been poorly performing for weeks or months. The doctor finally decides that enough is enough and gets ready to terminate employment, only to find out about a condition the employee has which is causing either a temporary or permanent disability. The question then becomes, can the doctor continue with the termination or not?
Even if it is a good employee, the answers are no less clear or easy to confront. The fact is, you run a business and that business depends on reliable employees. When staff issues materialize, the impact is felt throughout the practice and can become quite stressful.
Although each scenario must be dealt with on a case–by–case basis, there are some fundamental requirements that each practice owner should know and be prepared to comply with when the time comes.
The Americans with Disabilities Act
Enacted in 1990, the Americans with Disabilities Act (ADA), which applies to employers with 15 or more employees, is landmark legislation. Prior to this, there were no protections provided to individuals who were faced with a disability. If an individual had been discriminated against based on a disability, he or she had no ability to seek redress in the courts.
Individual states have followed suit and further increased the ADA protections, which most often supersede federal requirements. States do two things: 1) They lower the employee threshold by which disability laws apply to employers. For example, in Oregon it's six or more employees, in California it's five or more, and in Minnesota it's one or more. 2) Various states broaden the definition of a disability, making it easier for an individual to qualify. As a result, individual state laws greatly impact most dental offices.
The mandate is clear: Governments' goal is to eliminate discrimination against individuals with disabilities.
Definition of a disability
Under the ADA, a disability is a physical or mental impairment that substantially limits one or more major life activities of an individual. A disability can also be one in which an individual has a record of such impairment or who is regarded as having such an impairment.
What is a major life activity? The following list includes some of the areas the ADA defines as major life activities (not a complete list):
- Caring for oneself
- Performing manual tasks
- Seeing, hearing, eating, sleeping, walking, standing, lifting, bending, speaking, breathing
- Learning, reading, concentrating, thinking, communicating
A major life activity can also include issues or problems with (not a complete list):
- Immune system
- Normal cell growth
- Digestive, bowel, bladder function
- Neurological, brain function
- Respiratory, circulatory system
- Endocrine system
- Reproductive functions
Alcoholism is also a disability under the ADA. Thus, a job applicant or an employee who is an alcoholic is protected under these laws.
It is important to note that the definition of a disability and who may qualify as having a disability is very broad and intended to favor individuals to the maximum extent permitted by the Act. Moreover, the new ADA Amendments Act of 2008 further increased protections for individuals.
When an employer is confronted with a disabled individual, whether during the application process or after hiring, disability regulations require the employer to “reasonably accommodate” that individual if he or she is otherwise qualified for the job. Note: Even if disability regulations do not apply, this remains the safest course of action for employers.
A qualified individual is someone who can perform the “essential functions” of a job that either the individual holds or desires to hold, with or without reasonable accommodation. Determining the essential functions of each position is left to the employer to decide and is usually defined within a written job description.
This is one of the important reasons that we at Bent Ericksen & Associates are such strong advocates of complete, well–written job descriptions that incorporate the essential ADA compliance components (contact our office for a sample).
Reasonable accommodation can include many different things. In general, reasonable accommodation will land in one or two categories:
- Facility modifications — making existing facilities used by employees readily accessible to and usable by individuals with disabilities
- Job restructuring — part time or modified work schedules, reassignment to a vacant position, acquisition or modification of equipment or devices, appropriate adjustment or modifications of examinations, training materials or policies, the provision of qualified readers or interpreters, and other similar accommodations for individuals with disabilities
If an employer decides that reasonable accommodation is not possible, he or she must be able to show “undue hardship,” which means an action requiring significant difficulty or expense. Factors to be considered for claiming undue hardship include, but aren't limited to:
- The nature and cost of the accommodation
- The overall financial resources of the facility
- The number of employees employed at the facility
- The effect on expenses and resources or the impact otherwise of the accommodation
- The overall size of the business
- The type of operation of the covered entity, including composition, structure, and functions of the workforce
Disability regulations expressly prohibit employers from discriminating against an individual based on his/her having a disability. This prohibition begins the moment an individual becomes an applicant for employment and carries through the duration of the employment relationship.
Today's reality: Employment decisions or taking adverse actions against an individual must be job–related and based on business necessity; anything else could cause liability.
One particular area of concern, as it pertains to discrimination, is medical examinations. Many employers have, or desire to have, a system in which potential new hires or current employees must submit to a medical exam. The ADA puts limits on when medical exams can occur.
A medical exam cannot be done prior to hiring. A conditional offer of employment must occur before subjecting an individual to a medical exam. Once hired, employees may only be asked to submit to a medical exam when it can be shown to be job–related and consistent with business necessity.
One caveat: Pre–hire drug testing for illegal drug use is not considered a medical exam and, therefore, can be conducted prior to offering employment.
The employer requirements regarding disabilities, both on the federal and state level, are far reaching when it comes to protecting individuals with disabilities. These protections are complex and highly detailed, requiring an employer to be knowledgeable in order to be in compliance and liability–free. Obtaining knowledge about your state laws and fully understanding those requirements is the best next step for any employer. Not doing so means you will likely become part of the growing discrimination statistics.
Tim Twigg is the president of Bent Ericksen & Associates, and Rebecca Crane is a human resource compliance consultant with Bent Ericksen & Associates. For 30 years, the company has been a leading authority in human resource and personnel issues, helping dentists successfully deal with the ever–changing and complex labor laws. To receive a complimentary copy of the company's quarterly newsletter or to learn more about its services, call (800) 679–2760 or visit the Web site at www.bentericksen.com.