What does disability accommodation mean?
Understanding how to accommodate a disability in the workplace
Just because you’re not at 100% doesn’t mean you can’t get your job done.
That’s why laws were enacted to protect persons with disabilities. Some employers hold the mistaken belief that if an employee is not at 100%, they can’t perform the job. This is clearly false and comes from a severe lack of understanding an employees needs and how they work.
You may need some adjustments to your workplace or its policies because of your condition. And that’s okay! The law protects you so that your employer is required to provide these to you.
Employers are obligated to provide a reasonable accommodation to its disabled employees to enable them to perform the essential job duties of the position they hold.
There are many misconceptions by employers and employees about what “disabilities” are protected, misconceptions by employers about how the condition affects an employee, misconceptions about the process legally required to discover ways an employee can be accommodated. I’m here to help you understand the law, so you can fight for your right to work.
What is a “disability”?
To understand how to accommodate a disability in the workplace, you need to know what disabilities require accommodations at work.
What disabilities are covered?
A disability that requires accommodations at work is not limited to what you typically think when you hear the word “disability.” Like, deafness, blindness, conditions requiring a wheelchair, to name a few. It also includes mental conditions, such as clinical depression and bipolar disorder. It can also be other physical conditions, such as chronic migraines or limitations due to a knee replacement.
Here’s the test:
Do you have any type of anatomical loss, cosmetic disfigurement, physiological disease, disorder or condition?
Does it affect one or more of these body systems? There are a lot! (neurological, immunological, musculoskeletal, special sense organs, respiratory including speech organs, cardiovascular, reproductive, digestive, genitourinary, hemic and lymphatic, circulatory, skin, and endocrine systems)
Does the condition make achieving a major life activity difficult?
When answering No. 2, keep this in mind.
Major Life Activity?
A “major life activity” is interpreted broadly.
These include (but this list is not exhaustive!):
caring for oneself, performing manual tasks, seeing, hearing, eating, sleeping, walking, standing, sitting, reaching, lifting, bending, speaking, breathing, learning, reading, concentrating, thinking, communicating, interacting with others, and working.
the operation of a major bodily function or an organ within a body system
Difficult?
Do NOT consider whether a reasonable accommodation or treatment or therapy would eliminate or reduce the difficulty.
Even a condition that is in remission or episodic may be considered a disability if when the condition is active, it makes the achievement of a major life activity difficult.
Consider what most people in the general population can perform with little or no difficulty, what members of your peer group can perform with little or no difficulty, and/or what you would be able to perform with little or no difficultly in the absence of your condition.
The law specifically provides the following:
Physical Disability (This list is not exhaustive.)
deafness
blindness
partially or completely missing limbs
mobility impairments requiring the use of a wheelchair
cerebral palsy
chronic or episodic conditions, such as HIV/AIDS, hepatitis, epilepsy, seizure disorders, diabetes, multiple sclerosis, and heart and circulatory disease
(WE COVERED THIS ABOVE!) any other anatomical loss, cosmetic disfigurement, physiological disease, disorder or condition that limits a major life activity and affects one or more of the following body systems: neurological, immunological, musculoskeletal, special sense organs, respiratory including speech organs, cardiovascular, reproductive, digestive, genitourinary, hemic and lymphatic, circulatory, skin, and endocrine systems.
Mental Disability (This list is not exhaustive.)
emotional or mental illness
intellectual or cognitive disability
organic brain syndrome
specific learning disabilities
autism spectrum disorders
schizophrenia
chronic or episodic conditions, such as clinical depression, bipolar disorder, post-traumatic stress disorder, and obsessive compulsive disorder
Special Education Disability
any health impairment or mental/psychological disorder that requires(ed) special education or related services.
*This may include a "specific learning disability." which can include perceptual disabilities, brain injury, minimal brain dysfunction, dyslexia and developmental aphasia.
There’s more:
Having a Record or History of Disability
Your employer is aware you had (or were misclassified as having) a record or history of a a mental/physical disability or special education health impairment.
Perceived As Having a Disability
Your employer regards, perceives or treats you as having a disability.
Accommodations for disabilities
Your employer is required to provide you with modifications or adjustments that:
enable you to perform the essential functions of your job or the job you applied for
enable you to have an equal opportunity to be considered for a job you applied for
enable you to enjoy the same benefits and privileges that are enjoyed by your peers who do not have a disability
What are examples of reasonable accommodations?
Your employer may be required to modify some of its work rules, its facilities, or the terms or conditions of your employment to enable you to work.
This could include:
making facilities readily accessible and usable
allowing assistive animals at work
transferring an employee to a more accessible worksite
providing assistive aids and services
restructuring your job
providing part-time or modified work schedule
altering when/how an essential function is performed
modifying exams, training materials or policies
modifying an employer policy
modifying supervisory methods (eg. dividing complex tasks into smaller parts)
providing additional training
permitting an employee to work from home
providing paid or unpaid leave for treatment & recovery
providing reassignment to a vacant position
The interactive process
Timely Collaboration to determine accommodations:
Once your employer is aware that you may need an accommodation, your employer must engage in a timely, good faith, interactive process with you to determine an effective accommodation.
This process should involve speaking with you about your job responsibilities and discussing possible modifications to your work environment or the manner in which your perform your job so that you can continue to work while maintaining your health.
All possible means of reasonably accommodating a person must be explored.
Don't be the cause of any breakdown in communications!
During the interactive process, you must ensure that you are not the cause of any breakdown in communications. Continue to reach out to your employer after you've made your accommodation request to obtain updates or ask them if they need more information from you or your physician.
If your employer is already aware of your disability, it has an affirmative duty to make a reasonable accommodation for your disability, meaning, your employer cannot wait for you to request an accommodation; it must act affirmatively and begin engaging in an interactive process with you.
The accommodation cannot cause an Undue Hardship (this ensures it’s “reasonable”).
Throughout the interactive process, you and your employer should be identifying an accommodation that would enable you to continue performing the essential job functions, while not causing an undue hardship on your employer.
Although your employer is required to be flexible with its disabled employees to accommodate their needs, the accommodation must be "reasonable." This means that your employer cannot be forced to provide an accommodation that will cause an "undue hardship." Relying on an "undue hardship" as the reason your employer cannot accommodate you is a high standard for your employer to meet. A number of factors may be considered, including the cost, longevity, and scope of the accommodation, size of the business, and the nature of the business.
When You May Not Be Protected
Health and Safety At Issue
Your employer can also refuse to hire or terminate you if you cannot perform the essential duties of your job without endangering your health or safety or the health or safety of others, even if your employer provides a reasonable accommodation.
Performing Your Essential Duties With or Without Accommodations
Your employer can refuse to hire or terminate you if you cannot perform the essential duties of your job, even if your employer provides a reasonable accommodation.
DISCLAIMER: this information is general in nature and does not constitute legal advice or seek to be the complete and comprehensive statement of the law, nor is it intended to address your specific requirements or provide advice on which reliance should be placed.