This year, according to the ODEP, the theme focuses on and reflects on the importance of “ensuring that people with disabilities have full access to employment and community involvement during the national recovery from the COVID-19 pandemic.”
According to data provided by the CDC, over 1 in 4 American’s live with a disability. While some of these 61 million Americans may not currently be in the workforce, employers have the responsibility to ensure their workplaces are accommodating and can adapt to different situations that may arise when an employee has a disability.
What is the definition of a disability?
As defined by the Americans with Disabilities Act (ADA), a person with a disability is someone who has a physical or mental impairment that substantially limits one or more major life activity. This includes people who have a record of such an impairment, even if they do not currently have a disability. It also includes individuals who do not have a disability but are regarded as having a disability. Under the context of the ADA, a disability is a legal term rather than a medical one, where disabilities themselves offer diversity in the way they may affect an individual. Some disabilities may be visible and others visible. Some people may have been born with a disability where others may have been acquired at some point during the person’s life. Regardless of these factors, disabilities cut across gender, race, and ethnicity and all socioeconomic status.
To use a broad stroke when defining a disability and how it may impact the basis of employment is what can often put an employer in hot water legally. It is never a one-size-fits-all approach and employers must be cognizant to not discriminate against applicants or employees with disabilities.
Where should an employer start in an effort to become a more inclusive workplace with respect to disabilities?
The first step is to build an inclusive workforce which promises employment opportunities to those qualified people with disabilities. An employer can start by implementing recruiting, hiring, training and advancement strategies that are flexible and recognize talent, regardless of disability.
Employer resources are plentiful through the ODEP. But the first place to begin is with the applicable federal and state laws and regulations related to disabilities in employment. For example, the Americans with Disabilities Act (ADA) of 1990 is very clear that regardless of size, an employer cannot discriminate against people with disabilities in their employment practices.
The ADA prohibits covered employers from discriminating against qualified individuals with disabilities in:
- Job application procedures
- Job training
- Other terms, conditions and privileges of employment.
Employers should examine their employment practices, including their job application and recruitment strategies, to ensure they are not intentionally or unintentionally excluding qualified applicants from applying to open positions. This includes what a hiring manager may or may not ask during the recruiting or application process and during an interview. The ADA prohibits asking disability-related questions before a job offer is made except in very specific circumstances.
- Do not ask about prior workers’ compensation injuries.
- Do not ask if an applicant has a disability.
- Do not ask if the applicant is healthy.
- Do ask if the applicant can perform the essential functions of the position for which he/she is applying.
- Do have a written job description with items listed under the “Essential Functions” and “Physical Requirements” of the position to help the applicant make an informed determination.
- Do not ask any question that may violate any regulations.
What should an employer do when notified of an applicant or employee’s disability?
There may be a time when an individual with a disability, in order to perform the essential functions of their job, may need a reasonable accommodation. Under the ADA, a reasonable accommodation is considered any modification or adjustment to a job task, function or work environment that enables a qualified person with a disability to perform the job.
An example of a reasonable accommodation might be a special keyboard or monitor for a visually-impaired employee. Or it could be a desk or special chair for an individual in a wheelchair or with a physical impairment. And sometimes it could be in the form of flexible work hours or a scheduled variation.
Federal law has outlined an employer’s obligations at working to accommodate an employee and consider alternatives and mechanisms to enable an employee to work effectively. This process of identifying the accommodation that best meets the needs of the employee and employer is called the interactive process.
During this process, the employer and employee determine the most effective method of accommodating the employee’s needs. The only statutory limitation on an employer’s obligation to provide such reasonable accommodation is if the change or modification requirements may cause the business an “undue hardship”, which is a significant difficulty or financial expense that cannot be met by the employer.
In many cases, however, the accommodation may not even be a financial expense. Alternatives come in many forms and it’s up to the employer to listen to and work with the employee, who may provide suggestions and options to accommodate their needs.
Should you or your business want additional information on disability awareness or the accommodation process, contact the HR experts. Our HR Consultants can provide you with training and resources to help your business raise awareness on diversity, inclusivity, and disabilities in the workplace.