HR MATTERS E-TIPS
THIS WEEK'S E-TIP: Termination and ADA Disability Issues Q&A
August 1, 2006, Volume 8, No. 31
Published by Personnel Policy Service, Inc.
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^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^ THIS WEEK'S E-TIP: Termination and ADA Disability Issues Q&A Can you terminate an employee who says he cannot perform certain job duties because of a health condition? You need to consider your obligations under the ADA before taking this final action. |
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THIS WEEK'S E-TIP: Termination and ADA Disability Issues Q&A Q: Currently we have an employee who is 57 years old and works in our file room. A year ago he suffered a heart attack and took Family and Medical Leave Act (FMLA) leave, but returned to work without any restrictions. Last week, he brought in a doctors' note indicating that now he cannot bend, lift, or work in a stressful atmosphere because of continued cardiac problems. His work in the file room requires him to be able to bend and lift heavy boxes, and the pace of the file room can be fairly hectic. We feel these limitations will put a hardship on the file room, and the company, and would like to terminate him, but are concerned about potential problems under the Americans with Disabilities Act (ADA). Can we terminate this employee because he cannot perform these job functions? A: You are correct to be concerned about the ADA. Whether you can terminate the employee depends on two issues related to this law. First, if his heart condition makes him a disabled employee protected by ADA, you may have to accommodate him to allow him to perform his essential job functions. Accommodations may include shifting nonessential job duties from his current job requirements. Second, if the file room job duties are considered essential job functions, you may be able to terminate the employee if he cannot perform them with or without an accommodation. The ADA defines disability as (1) a physical or mental impairment which substantially limits a major life activity; (2) a record of having an impairment; or (3) being regarded as having an impairment. See 42 U.S.C. §12102(2). ^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^ "U.S.C." refers to the federal United States Code, and "C.F.R" refers to the Code of Federal Regulations. ^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^ Definitions and Medical Certification The term "major life activities" refers to those activities that are of a central importance to daily life. The ADA regulations define "major life activities" to include functions such as caring for oneself, performing manual tasks, walking, seeing, hearing, speaking, breathing, learning, and working. See 29 C.F.R. §1630.2(i). According to the regulations, the term "substantially limits" means that the person is unable to perform a major life activity that the average person in the general population can perform, or the person is significantly restricted in the way he can perform a particular major life activity as compared to the average person. See 29 C.F.R. §1630.2(j)(1). You can require the employee to provide medical certification of his disability and need for accommodation, beyond just the doctor's note simply stating that he cannot bend, lift, or work in a stressful environment. See EEOC Enforcement Guidance on Disability-Related Inquiries and Medical Examinations of Employees under the ADA (7/27/00); EEOC Technical Assistance Manual, 6.6. Accordingly you should require specific medical certification from the employee that indicates that he does indeed have a disability that meets the ADA criteria and that he needs an accommodation in order to allow him to perform the essential functions of his job. The ADA only requires you to provide an accommodation that is reasonable and does not cause the employer an undue hardship. An accommodation generally is considered "reasonable" only if it enables the employee to perform the essential functions of the job, and an employer is not required to eliminate a job's essential functions as an accommodation. Interpretive Guidance to the ADA, 29 C.F.R. §1630.2, 29 C.F.R. Part 1630, Appendix. This point may be particularly important to the employee in question. If the employee cannot perform the essential functions of the job, with or without an accommodation, you are not required to eliminate the functions, and the employee likely is not entitled to protection under the ADA. Essential Functions The ADA regulations provide employers some guidance to help employers identify the essential functions of a given position. The regulations define a job's "essential functions" as those that are "fundamental," not "marginal", and list three factors that help distinguish fundamental job functions from marginal ones. See 29 C.F.R. §1630.2(n). These factors include: (1) The performance of the function is the reason the position exists; (2) There are a limited number of employees available who can perform the function or among whom the job function can be distributed; and (3) The function is highly specialized so that the person in the position is hired for his special expertise or ability to perform it. See 29 C.F.R. §1630.2(n)(2); EEOC Technical Assistance Manual, 2.3(a). |
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Reasonable Accommodation The Equal Employment Opportunity Commission's ("EEOC") Technical Assistance Manual explains that a reasonable accommodation is "a modification or adjustment to a job, the work environment, or the way things usually are done that enables a qualified individual with a disability to enjoy an equal employment opportunity." Generally, accommodations must be provided to allow a disabled person to perform the essential functions of the job and to ensure equal benefits and privileges of employment. See EEOC Technical Assistance Manual, 3.3. To determine the appropriate accommodation for a disabled employee, the EEOC indicates that it "may be necessary" for an employer to engage in a flexible, interactive process that involves the employee. The process should identify both the precise limitations resulting from the disability and the potential reasonable accommodations that could overcome those limitations. See 29 C.F.R. §1630.2(o)(3); EEOC Guidance on Reasonable Accommodation and Undue Hardship under the Americans with Disabilities Act (10/17/02). Reasonable accommodations may include job restructuring, such as eliminating nonessential job functions or even reassignment to a vacant position. See 29 C.F.R. §1630.2(o)(2). However, reassignment to a vacant position should be considered only when an accommodation in the employee's current position would pose an undue hardship. See Interpretive Guidance to the ADA, 29 C.F.R. §1630.2(o)(2), 29 C.F.R. Part 1630, Appendix. Undue Hardship An employer does not have to provide an accommodation if doing so would impose an undue hardship on the operation of the employer's business. See 42 U.S.C. §12111(10); 29 C.F.R. §1630.9(a). The term "undue hardship" means significant difficulty or expense in, or resulting from, the provision of the accommodation. See 29 C.F.R. §1630.2(p). The undue hardship standard is very tough to meet and requires employers to show that the accommodation involves significant difficulty or expense; is unduly extensive, substantial, or disruptive; or would fundamentally alter the nature or operation of the business. See Interpretive Guidance to the ADA, 29 C.F.R. §1630.2(p). If you can show that the employee is asking you to remove essential functions of his job as an accommodation, you likely do not have any duty to accommodate him under the ADA. Accordingly, you may be able to terminate him because he cannot perform the essential functions of his job, with or without an accommodation. However, before you take any adverse employment action, you should go through the ADA analysis discussed above to determine whether the employee is disabled under the ADA, whether the job functions he cannot perform are essential, and whether you have a duty to provide an accommodation. Your attorney can help you with this evaluation. |
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Subscribers to the
Personnel Policy Manual and HR Policy Answers on CD can find more information on the ADA disability definition and reasonable accommodation in Serious Diseases, Chapter 203A, notes 7 and 13. Essential job functions are discussed in Job Evaluation, Chapter 304, note 8. If you don't have the manual, but would like to order a trial review, go to: http://www.ppspublishers.com/ezppm.htm Or just give us a call toll-free at 1-800-437-3735. |
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