Administrative, Legal & Policy Issues

Reasonable accommodation under the ADA: Are employers required to participate in the interactive process? The courts say "Yes" but the law says "No"

Autry, J. R. (2004). "Reasonable accommodation under the ADA: Are employers required to participate in the interactive process? The courts say "Yes" but the law says "No"." Chicago-Kent Law Review, 79: 665-698.

The Act reflects an unambiguous congressional intent to eliminate disability discrimination in all facets of society, including the workplace. ... When an employer moves for summary judgment, claiming that its disabled employee is not statutorily qualified, and/or when an employer claims that its good faith attempt to reasonably accommodate a disabled employee should immunize it against a claim for compensatory and punitive damages, the employer's failure to interact could influence the court's decision. ... Speaking of employer attempts to accommodate, the regulation states that "it may be necessary" for employers to engage in an interactive process. ... Certain courts have stated that, although employers will incur liability where they fail to reasonably accommodate a qualified individual with a disability, and the EEOC-recommended interactive process is an excellent method by which to find the appropriate accommodation, employers are not required to comply with the EEOC guidelines. ... The Barnett court held that "employers, who fail to engage in the interactive process in good faith, face liability for the remedies imposed by the statute if a reasonable accommodation would have been possible.

Empirical study of the Americans with Disabilities Act: Employment issues from 1990 to 1994

Blanck, P. D. (1995). "Empirical study of the Americans with Disabilities Act: Employment issues from 1990 to 1994." Behavioral Sciences & the Law, 14(1): 5-27.

The Americans with Disabilities Act (ADA) of 1990 is the most comprehensive federal civil rights law addressing discrimination against one-fifth of the American population. This article is meant to contribute to the emerging dialogue on ADA implementation by presenting information from a longitudinal investigation of employment integration and economic opportunity under the employment provisions of the ADA, set forth in Title I of the act. The broader relevance of the investigation to merging questions under Title I law is described. Thereafter, the investigation's seven core findings are presented, and then the implications for future investigation of the ADA are examined.

Comparative study of workplace policy and practices contributing to disability nondiscrimination

Bruyere, S. M., Erickson, W. A., & VanLooy, S. (2004). "Comparative study of workplace policy and practices contributing to disability nondiscrimination." Rehabilitation Psychology, 49(1): 28-38.

Objective: To assess the impact of disability nondiscrimination legislation on employer practices in the United States and the United Kingdom. Study Design: U.S. and U.K. human resource professionals were surveyed about their experience with implementation of the legislation. Results: Both U.S. and U.K. employers are responding to their respective legislation by making accommodations-adjustments needed by applicants and employees with disabilities. Conclusions: Rehabilitation psychologists and other health care professionals working with people with disabilities must understand employee rights and employer responsibilities under this legislation, know where employers may have difficulty in responding to an accommodation request, and be familiar with the existing workplace resources and processes that can support an effective response to such requests.

New developments concerning reasonable accommodation of disabilities in American organizations

Christie, L., & Kleiner, B. H. (2001). "New developments concerning reasonable accommodation of disabilities in American organizations." Equal Opportunities International, 20(5/6/7): 152-156.

Suggests that trends are beginning to emerge in regard to the reasonable accommodation of disabilities, particularly those which help us deal with the accommodations. Provides information regarding recent court decisions which further defined interpretation and given guidelines. Looks at some of the creative ways in which assistance is provided. Concludes that the Act is opening many more doors to those previously denied employment, and recent cases have soothed the fears of employers by their fair and just resolutions.

The ADA: Public personnel management, reasonable accommodation and undue hardship

Greenlaw, P. S., & Kohl, J. P. (1992). "The ADA: Public personnel management, reasonable accommodation and undue hardship." Public Personnel Management, 21(4): 411-427.

Reviews provisions of the Americans with Disabilities Act that affect the public sector; examines in detail the concepts of reasonable accommodation and undue hardship in the act and in Equal Employment Opportunities Commission interpretations.

Reasonable accommodation requirements under workers' compensation in Ontario

Gunderson, M., Hyatt, D., & Law, D. (1995). "Reasonable accommodation requirements under workers' compensation in Ontario." Industrial Relations, 50(2): 341-360.

A relatively new and potentially important administrative forum for interpreting the concept of reasonable accommodation has been created by the Ontario Workers' Compensation Act as amended in 1989. The revised act contained provisions requiring employers to reemploy, and where necessary make reasonable accommodations for, workers following an injury. Though representing an important reformation for the workers' compensation system, accommodation requirements are present in other labor market policy initiatives. The accommodation requirements in other legislation and jurisprudence in Canada are discussed, the recent reforms to the Ontario Workers' Compensation Act are described in which accommodation represents an integral component, and the new and emerging jurisprudence under the revised act are outlined.

Salient and subtle aspects of demand side approaches for employment retention: Lessons for public policymakers

Habeck, R., Kregel, J., Head, C., & Yasuda, S. (2007). "Salient and subtle aspects of demand side approaches for employment retention: Lessons for public policymakers." Journal of Vocational Rehabilitation, 26(1): 21-27.

Public policies to stimulate demand side factors that affect the employment status of people with disabilities need to consider workplace efforts that support the continued employment of employees who develop work limitations from any cause (back door factors), as well as the hiring behaviors of employers (front door factors). Workplace participation rates are influenced by employment exits as well as placements. Little focus has been given to preventing separation from employment, despite evidence of the progression to public disability benefits. Factors that place employees who develop impairments or work limitations at risk for early exit from employment are discussed. Preliminary findings from a qualitative study of successful firms are identified and illustrated with practice examples. Implications of these effective interventions are raised, including the provision of workplace based services, the need for accommodations over time, and the role of employer incentives for retention.

The role of organizational policies and practices in predicting post surgical change in self-efficacy and accommodation following carpal tunnel release surgery

Iha, G. S. (2005). The role of organizational policies and practices in predicting post surgical change in self-efficacy and accommodation following carpal tunnel release surgery. Retrieved May 28, 2008, from Digital Commons @ the Texas Medical Centeropens a new window

This study identified predictors (clinical, demographic, economic, job, psychosocial, and organizational) of a change in self-efficacy which, at two months post surgery, along with organizational policies and practices (OPPs) have been shown to be a significant predictor of successful work role function following carpal tunnel release surgery (CTRS). The role of these same variables in accommodation of the employee in the workplace was also explored. Methods: A community based cohort (N=148) of persons meeting selection criteria for CTRS were followed for one year post surgery. Predictors of a change in self-efficacy were analyzed using linear regression. Logistic regression was used to determine those variables associated with accommodation. Results: Employee's perception of organizational policies and practices predicted the change in self-efficacy (p=.001) with R2 =0.291. Significant covariates included personal health status and force times repetition, a measure estimating the physical work load which increased the R2 of the model to 0.419. No significant variables, including OPPs, were associated with accommodation at baseline. Conclusion: The work environment and specifically the organizational level OPPs are important in predicting a change in self efficacy following CTS. This research supports the role of the environment as described in the social cognitive theory and provides a mechanism or link between OPPs and SE. Primary and secondary models for disability should be multidimensional, temporal and include workplace policies and practices. These OPPs should include disability management, safety, ergonomics and a people oriented culture. OPPs were not associated with accommodation. To better understand the behavior of an employee following an illness or injury, the work environment and its influence on the employee needs further evaluation.

Reasonable accommodation to mental health disabilities at work: Legal constructs and practical applications

Kaufmann, C. L. (1993). "Reasonable accommodation to mental health disabilities at work: Legal constructs and practical applications." The Journal of Psychiatry & Law, 21:153-174.

Title I of the ADA of 1990 requires employers to make reasonable accommodations to workers with physical and mental health disabilities. The linking of physical and mental illnesses under a common mandate confuses many employers and their legal advisors. Mental illnesses usually manifest themselves through behavior, and the accommodations required involve adjustments in scheduling, supervision, and interpersonal relationships on the job. This paper presents case studies in reasonable accommodation to workers with schizophrenia. The most common accommodation is flexible scheduling to allow for psychiatric treatment during work hours. Second most common is adaptations of the interpersonal environment to protect the worker's privacy and reduce stress. Cases of successful and unsuccessful outcomes to the accommodation process indicate that some functional limitations cannot be accommodated. For an accommodation to be reasonable, it must meet the needs of the employers as well as the worker. While not all persons with mental health disabilities meet qualifications for jobs in the competitive labor force, many function well with minimal adjustments from an employer.

Legal requirements and employer responses to accommodating employees with disabilities

Lee, B. A. (1996). "Legal requirements and employer responses to accommodating employees with disabilities." Human Resource Management Review, 6(4): 231-251.

This article focuses upon the legal requirements for accommodating individuals with disabilities in the workplace and the perceptions of employers regarding barriers to accommodation. After a brief analysis of how federal courts have interpreted the ADA's accommodation requirements, the literature on accommodation is reviewed and a theoretical framework for examining employers' attitudes toward accommodation is proposed. The article then tests the framework using the results of a study of 500 New Jersey employers which elicited their experiences with and attitudes toward the accommodation of disabled workers. Suggestions for further research are provided.

Cultural and organizational aspects of application of the Americans with Disabilities Act to persons with psychiatric disabilities

Mechanic, D. (1998). "Cultural and organizational aspects of application of the Americans with Disabilities Act to persons with psychiatric disabilities " The Milbank Quarterly, 76(1): 5-23.

The Americans with Disabilities Act (ADA) requires employers to provide reasonable accommodation for persons with psychiatric disabilities. Most persons with a history of mental disorder work productively and do not require accommodation. Many persons with serious mental illness need accommodation but are conscientious and productive workers. Difficulties inherent in the Equal Employment Opportunity Commission (EEOC) guidelines are those of differentiating aspects of mental disorder from work-related conduct and the potential for manipulative persons to use the Act to excuse inappropriate behavior and ask for accommodation. A further problem is the potential for discouraging employers from hiring persons with mental illness because of the perceived difficulty of terminating them should their work prove unsatisfactory. If the ADA is to be effective, it must be seen as only one step in a larger process involving public education, effective mediation, and meaningful assistance.

Policy barriers for people with disabilities who want to work

O'Day, B. (1999). "Policy barriers for people with disabilities who want to work." American Rehabilitation, 25(1/2): 8.

Explores the barriers presented by government programs in the United States to the employment of people with disabilities. Identifies goals that should govern Social Security programs; evaluation of various federal reform proposals; and responses of the states to the problem of unemployment.