This summer the Americans with Disabilities Act (ADA) will turn 33. (This happens to coincide with the ages of Tyler and Sara . . . who we know look much younger than 33. *wink, wink*) In our experience, business officials, bookkeepers, and other administrators may not immediately think of the ADA when interacting with employees. As a reminder, the ADA (subsequently called the Americans with Disabilities Act Amendments Act “ADAAA” - thank you to the federal government for such a succinct name) bars an employer from discriminating “against a qualified individual on the basis of disability.” See 42 U.S.C. § 12112(a). In order for an employee to be a “qualified individual” under the ADA, the employee must “(1) possess the requisite skill, education, experience, and training for the position, and (2) be able to perform the essential job functions, with or without reasonable accommodation.” 42 U.S.C. § 12111(8).
There are countless cases where employers have faced lawsuits due to an employer’s failure to accommodate. If a school district employee requests an accommodation due to a disability, the District has a duty to engage in an “interactive process.” The process should identify the precise limitations resulting from the disability and potential reasonable accommodations that could overcome those limitations. Essentially, this can be as simple as a meeting between an administrator and the staff member to help the District understand the employee’s abilities and limitations and whether there is a solution. This meeting should be documented in some manner. At KSB, we recommend an ADA Interactive Process Checklist.
If a district fails to engage in the interactive process in good faith, the District may be liable under the ADA if a reasonable accommodation would have been possible. What is a reasonable accommodation? A reasonable accommodation is assistance or changes to a position or workplace that will enable an employee to do his or her job despite having a disability. Under the terms of the ADA, “reasonable accommodation” can include: (A) making existing facilities used by employees readily accessible to and usable by individuals with disabilities; and (B) 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. 42 U.S.C. § 12111(9). If the accommodation would create an undue hardship for the employer, the accommodation would not be required. 42 U.S.C. § 12111(10)(B).
School administrators should be aware that the definition of “disability” under the ADA is quite broad, and Congress did that on purpose. It includes obvious and apparent conditions you may know about such as diabetes, cancer, and mobility impairments, but it also can include mental health conditions and others you may not know about. In general, it is easy to have a disability under the ADA, and once you have knowledge of a possible disability and need for possible accommodations, you as the employer should engage in the interactive process. Additionally, reasonable accommodations can vary and can include changes such as providing reserved parking, shades for bright lights, noise-canceling headphones, or daily schedule changes.
Finally, employers always need to keep in mind that the ADAAA is only one of several laws that could require action when an employee has a disability, such as the FMLA, state disability laws, work comp, and of course your own policies, handbooks, and contracts.
If you have any questions about the ADAAA or would like to purchase a copy of the ADA Interactive Process Checklist, please feel free to contact Karen, Steve, Bobby, Coady, Jordan, Tyler or Sara at (402) 804-8000, or send everyone an email at ksb@ksbschoollaw.com.