The Americans with Disabilities Act (ADA) was passed in 1990, and amended in 2008. At its most basic, it requires most employers to provide “reasonable accommodations” to employees with disabilities and provides for accessibility requirements in public accommodations. The disabilities covered can be either physical or mental conditions…and they don’t have to be severe or permanent. The list has the items you might expect—deafness, blindness, missing limbs, and use of a wheelchair—as well as conditions you might not—obsessive compulsive disorder, ADHD, PTSD, and schizophrenia.
Employers with 15 or more employees, as well as organizations like employment agencies and labor unions, are considered “covered entities” and must comply with ADA regulations.
A recent email from Gusto, one of our partners, brought up a very interesting question:
An employee in a job that regularly requires lifting 50 pounds was injured away from work and says they now can only regularly lift 25 pounds. Can this employee be terminated?
What’s Essential?
Thinking about the specifics of the question in broader generalities gives us the answer to this question and shows how it can apply to other situations. The first thing to consider is “what is an essential function of the job?”
For the job in question, is it essential that someone can lift 50 pounds on a regular basis? A job in your company may require someone to be able to climb a ladder, walk 20,000 steps per day, or be able to drive a company vehicle. Those particulars may mean the employee in question needs to have use of their legs, be fairly active and in shape, or possess a valid commercial driver’s license.
If you examine the job and find that it can regularly be done without having to lift 50 pounds (in the first example), then realistically there’s no way you can consider that to be a fundamental requirement for the job.
Accommodations
If you do discover that what you consider an essential job function is indeed essential, then you must work with the employee to determine whether there is some reasonable accommodation you can make that would help them perform the task.
Is there a device that can assist in lifting 50 pounds and carrying it from point A to point B? If your company has a large property and the employee has to walk constantly to various places, might there be an advantage to having an electric cart to get around? Is it reasonable to get an employee training and properly licensed?
You might also consider if any of these conditions are temporary and a reassignment is a better option than either termination or accommodation.
Probably…but Be Cautious!
If you go through the above steps and discover that (1) the function you need the employee to do is essential and (2) there is no accommodation you can make that would not be an “undue hardship” for the business, then you probably can terminate that employee.
We are not legal counsel, but we have it on good authority that “undue hardship” can be tough to prove. Therefore, you may want to consult with your attorney before making the definitive choice to fire someone based on ADA regulations. If you go ahead and they decide to fight back, it could end up costing you more than making the accommodation would have!
As with any business decision, try to consider all the outcomes, both good and bad before you make a decision on this matter. And if you’re just not sure, talk to a professional in the field before you jump.
