Thursday, November 12, 2015

Americans with Disabilities Act – “Key Terms to Know”


November 2015
By Walter J. Liszka, Esq.

As every employer knows, as in all areas of the law, employment and labor law has seen the development of “Terms of Art” that affect segmented portions of the legal landscape. In the world of disability discrimination (Americans with Disabilities Act issues) there are numerous phrases that have taken on a special meaning and have become true "Terms of Art.” If supervisors and human resources personnel do not have a clear understanding and “working knowledge” of these key phrases, there may be issues of non-compliance with federal disability laws and state disability laws. The following are some of those “Terms of Art.”

1. Interactive Process:

It is an absolute necessity that employers and employees enter into an “interactive process” when any issue arises with regard to disability discrimination. The “interactive process” is a good faith communication between an employer and the involved employee to explore whether or not there is a need for a “reasonable accommodation” to allow the employee to effectively perform “the essential functions of the job” and to establish what those accommodations must be. The process between the employer and the involved employee must be interactive – i.e. both parties must participate with each other in the process. As well, the process needs to be mutual – i.e. one side does not have the right to break down the communication process and the process must be honest and clear about the information sought by both sides from the other side. The process must have its goal the achievement of a reasonable and good faith approach that both the employer and involved employee will buy into to provide a reasonable accommodation to an individual employee who has a disability. It is extremely important for both sides in the “interactive process” to not only comply with the letter of the law but with the “spirit of the law.”

2. Essential Job Functions:

It is an absolute necessity that there be a clear definition of the essential job functions which are the fundamental job duties of a position. These “essential job functions or duties” must be clearly defined in very straight forward and simple English (i.e. a receptionist position exists so someone may answer the phone and greet guests; a maintenance mechanic position exists so that an individual using the required tools can repair conveyor systems and machines, etc.). It is extremely important that if there are special skills or tools that are needed to perform the essential functions of the job, that those details and requirements are contained in a current and accurate job description.

3. Individual Assessment:


Each case of alleged disability and reasonable accommodation is unique and individualized. Even though a similar incident may have been dealt with in the past, this does not mean that the current situation does not present extremely unique circumstances that must be viewed critically and independently and does not mean that how we handled the last situation will apply to this case. Each case will have individualized and unique requirements involving the job’s essential functions, any employee restrictions and the particular needs of that department. All of this must be an individual assessment and must not delve into a “cookie cutter” application.

4. Job Restrictions:

It is an absolute necessity that the employer and the involved employee have a clear understanding of the disability or medical condition and focus on the nature of the restrictions, not the disability or medical condition itself. The fact that the individual may be suffering from a case of depression is less important than the reasonable accommodations that may be associated with that condition (for example, schedule changes or reduction in hours or change of work location). It is extremely important that both the employer and the involved employee have open and clear discussion with regard to the proposed work restrictions and how long they will last, are “hours of work” constrained or limited, etc.

5. Reasonable Accommodation:

A reasonable accommodation is a modification or adjustment in the employee’s work that allows the employee to perform the essential functions of the job but in maybe a little different way. The key terminology is that the “accommodation must be reasonable and effective.” While the term “reasonable” is, by nature, subjective and extremely difficult to define in an objective sense, it arises from a creative and diligent logical and fair analysis that is participated in by both the employee and the employer. As well, any accommodation if it is reasonable must also be “effective” in allowing the employee to perform the job. If an individual is suffering from a mental or psychological disability, would the providing of a new desk and desk chair be “reasonable and effective?” While the providing of a new desk and chair might be “reasonable,” will it be “effective” to allow the employee with such a disorder to perform the essential functions of the job? Again, while the accommodation may be “reasonable,” it may not be “effective,” and it must be both!

Obviously, the five (5) terms referenced in this article may not be the only appropriate “Terms of Art” for complying with the ADA, but they are certainly five (5) very important terms that must be clearly understood to achieve compliance and lower potential “employer liability.”


Questions? Contact Walter J. Liszka, Managing Shareholder of the Chicago office of Wessels Sherman at waliszka@wesselssherman.com or (312) 629-9300.