As an HR professional, you are well aware of employment law and how legislation such as FLSA, ADEA, and ADA affect business processes and procedure. But even the most knowledgeable and experienced professional has to remind him/herself of the intricacies of each law. This post focuses on ADA and how job descriptions may provide you with the evidence you need, if ever faced with a discrimination claim.
The Americans with Disabilities Act (ADA) was passed in 1990, making it unlawful to discriminate against a qualified individual with a disability in job application procedures, hiring, firing, advancement, compensation, job training, and other terms pertaining to employment. The ADA defines an individual with a disability as a person with a “physical or mental impairment that substantially limits one or more major life activities.” Individuals may also be covered under the ADA if he or she has a “record of such an impairment or is regarded as having such an impairment.” Also, those “associated with a person with a disability” are also protected against discrimination but employers are not required to provide reasonable accommodations to a person without a disability due to that person's association with someone with a disability.
While alcoholics and former illegal drug users may be protected under the ADA, (if he or she is qualified to perform the essential duties of the job) individuals who currently use illegal drugs are not. The ADA also specifies that conditions including kleptomania, pyromania, compulsive gambling, all sexual behavior disorders and current illegal use of drugs are not covered by the ADA. It is important to note that employers may discipline, discharge or deny employment to an alcoholic (or other protected individuals) if they violate the employer’s safety, conduct, and/or job performance standards.
In 2008, President George W. Bush signed The Americans with Disabilities Act Amendments Act (ADAAA) in to law making it easier for an individual seeking protection under the ADA to establish that he or she has a disability. The ADAAA does not alter the definition of “disability,” however; it does require that the definition of a disability be construed broadly. Because of this amendment, courts are to shift their focus from whether a person is disabled to whether discrimination has occurred or reasonable accommodations were refused.
So what does it mean to provide reasonable accommodations to an individual with a disability? A reasonable accommodation is “any modification or adjustment to a job or the work environment that will enable a qualified applicant or employee with a disability to participate in the application process or to perform essential job functions.” Common accommodations may include: making a facility accessible to individuals with disabilities, restructure a job or work schedule, modify equipment, tools, training procedures or other programs, or provide qualified readers or interpreters.
An employer does not have to provide reasonable accommodations if it would impose an “undue hardship.” Undue hardship is defined as an “action requiring significant difficulty or expense when considered in light of factors such as an employer’s size, financial resources, and the nature and structure of its operation.” Employers do not have to sacrifice quality or lower production standards to make accommodations; nor do they have to provide the individual with personal use items such as glasses, hearing aids, walkers, etc.
Although the ADA does not require employers to maintain job descriptions, having accurate, detailed, and up-to-date job descriptions can be your best evidence in defending you against damaging litigation. It is important, if faced with an ADA claim, that you provide the courts with the essential functions of the job. Job descriptions are not the only piece of documentation that can establish essential functions, but they are however a widely accepted exhibit that can prove which functions are essential to a position. When writing the essential functions section of your next job descriptions keep these tips in mind:
- Include the approximate amount of time the employee will spend on the job performing certain functions. An employee will have a much harder time establishing that a task is a minor one or could be passed off to other employees if it requires a significant portion of the employee's work day.
- If a position requires repetitive motions, use the word "repetitive."
- Be specific regarding lifting and other physical requirements. Do not just say "must be capable of some heavy lifting" but instead specify the exact amount of weight that an employee is required to be capable of lifting.
- Human resources should work with front-line supervisors to ensure that the job description accurately reflects the actual tasks being performed.
- As always, make sure your job description is up-to-date. Job duties can evolve over time, so be sure that the job description accurately reflects the current functions of the job.
With an economy as it is today, it is not uncommon for employees to hold dual roles within a company; so be sure that your job description(s) reflect the essential functions of all roles, not just the primary tasks of the job in which they were hired to fill. When duties or roles change, this is the perfect time to update your job description.
You should also be mindful of the language you choose to write your job descriptions. There are no forbidden words, but it is important that the language in your job descriptions is not prejudicial to a qualified individual with a disability. When writing your job descriptions, focus on the essential functions of the job, not the ways they are currently or customarily performed. For example, an employee does not necessarily have to walk in order to move about the office; an individual in a wheelchair can accomplish the task even if he/she cannot walk.
Below are a few ways you can express physical demands/essential functions in an ADA compliant way. Also, if a physical demand is not essential in performing the job, you should omit it from your descriptions.
* Language table above from HR Daily Advisorhttp://hrdailyadvisor.blr.com/archive/2009/03/18/Job_Descriptions_ADA_compliant_writing_managing_non_prejudicial_language.aspx
It is human nature to avoid something unless it becomes a problem; but if you want to give yourself and your company the best chance of winning a discrimination claim, it is important to stay informed about ADA and to be proactive in maintain accurate and up-to-date job descriptions.