Nearly one in five people in the US (approximately 56.7 million people) have a disability. Only 18.7% of people with a disability had a job compared to 65.7% of those without a disability. Disability issues are increasingly critical for companies to understand especially as the workforce continues to age. One out of every 4 US workers will be over 55 by 2024, which is important because 48% of persons over 65 have a disability. People are also working longer and nearly 40% of people aged 65-69 are still working. As the working population ages, more people in the workforce will have a disability.

What is A Disability Under the ADA

The Americans with Disabilities Act (ADA) protects employees from being discriminated against because they have a disability or their employer regards them as disabled. It applies to any company with more than 15 employees. Under the law, a person has a disability when they meet one of three conditions (not every medical condition is protected). Here is a helpful breakdown from the EEOC (a government agency that enforces workplace discrimination laws):

• A person may be disabled if he or she has a physical or mental condition that substantially limits a major life activity (such as walking, talking, seeing, hearing, or learning).

• A person may be disabled if he or she has a history of a disability (such as cancer that is in remission).

• A person may be disabled if he [or she] is believed to have a physical or mental impairment that is not transitory (lasting or expected to last six months or less) and minor (even if he does not have such an impairment).

Is Obesity a Disability Under the ADA?

Obesity is not only a major medical problem in the US, with nearly 40% of adults meeting the criteria for obesity and 7.7% being severely obese, it is also an evolving and changing area of disability law.

The 7^th Circuit (covering Illinois, Indiana, and Wisconsin) will decide whether severe obesity (formerly known as morbid obesity) is a disability under the ADA. Generally, the standard has been that severe obesity is not a physical impairment (meaning it is not protected under the ADA) unless it is caused by an underlying disease or medical disorder. The 2^nd, 6^th, and 8^th Circuits have all found that severe obesity is not a disability without some associated medical issue or disorder. If the 7^th Circuit finds that obesity is a condition that is protected under the ADA, then numerous workplaces would need to prepare to accommodate these employees.

No matter what happens in the 7^th Circuit, if you have an employee like Al Bundy, who actively insults customers and just about anyone around him, then you should probably consider terminating him or her.

The Interactive Process or Providing a Reasonable Accommodation to Disabled Workers

If an employee informs their employer that they have a disability (note the employee does not need to say the magic words of disability or ADA) or the need for an accommodation is obvious, then the employer needs to begin the interactive process to determine what accommodation it should provide. The company should also document that it received a request to accommodate the disability and provide a copy to the employee to show that the company is committed to accommodating the employee.

The law requires employers to provide a reasonable accommodation for an employee unless providing an accommodation would cause the employer to suffer an undue hardship (it is too difficult or expensive, which is a high standard to meet) or the person cannot perform the essential functions of the job. For example, the nurse in last week’s article could not perform one of the essential functions of her job: lifting patients.

During the process, the employer asks the employee questions to determine what accommodation the employee wants and what is the problem that needs to be corrected (what tasks the disability is hindering or preventing the employee from doing). Employers should stay away from questions about the exact medical condition that the employee has and medical details (usually).

An employer does not need to give the employee the exact accommodation that the employee wants but may choose which accommodation to provide as long as it engages in the interactive process with the employee and considers the employee’s needs. To accommodate an employee, an employer may need to purchase a device to help the employee complete their job, modify the employee’s work schedule, or offer them a vacant position. Courts also generally require companies to continue to assess the accommodation and make changes to the accommodation as needed (assuming that this is a condition that will change, or the employee informs the company that his or her condition changed). Some conditions need only a one-time accommodation. The employee or their doctor may also have informed the company that the employee’s condition will not change. Companies do not need to continue seeking information from the employee in these situations.

Employers should document the discussion about the accommodation that they provide and how the employer determined which accommodation to provide. The interactive process is never the same because workplaces, jobs, and disabilities are all unique. However, when done right, the employee and the company can both win. The employee is more productive, less stressed, and a better, more loyal member of the team. The employer shows its employees that it cares for them, it gets a more productive employee, and employee morale improves.

Conclusion

Accommodating an employee with a disability can and should be done. Most of the time, it can even be done with little or no cost to the company. The Job Accommodation Network has conducted surveys showing that 59% of respondents stated that accommodating their employee cost nothing, and 36% had a one-time expense which cost $500 on average. Working with an employee to find the right accommodation also can show the employee that the company cares about the employee, which increases the employee’s morale. Rather than something that HR dreads, accommodating a disability can be a chance for HR to do one of its primary tasks: supporting employees and making them more productive by putting the “human” back in Human Resources.

The information provided in this blog is for educational purposes only and is not legal advice. If you need legal advice, then you should speak with a lawyer about your specific issues. Every legal issue is unique. A lawyer can help you with your situation. Reading the blog, contacting me through the site, emailing me or commenting on a post does not create an attorney-client relationship between any reader and me.

The information provided is my own and does not reflect the opinion of my firm or anyone else.