We had very successful webinar recently on the New ADA Return to Work Interpretations. There were many questions from the audience. Find below the responses to the questions related to Reasonable Accommodation given by Aaron Konopasky, Senior Attorney Advisor, Equal Employment Opportunity Commission, and Jennifer Christen, MD, President, Webility Corporation.
Is a reasonable accommodation having someone else do part of the worker’s job? For example, all of the lifting?
If lifting is an essential function of the job (central to what the person was hired to do), then, generally, no. Reasonable accommodations enable the person to do the essential functions of the job, not eliminate them.
A few clarifications, though:
It’s possible that someone in a certain position is sometimes expected to lift something, but it’s not really what they were hired to do. We call that a “marginal” function. For example, an accountant might occasionally have to lift a heavy box of records above shoulder height to put it on a high shelf in a storage room. Because she’s an accountant, her job really isn’t lifting.
In a case like that, having someone else help with the lifting could be a reasonable accommodation, especially if it’s for the short term. But sometimes it’s possible to accomplish the same job tasks without needing anyone else’s help — and that might be even better. For example, if the person could use a hand truck/trolley to move the records, and they could be stored on a lower shelf, the employer may need to make that reasonable accommodation.
If the job involves rotations or assignments that sometimes require lifting and sometimes do not, assignment to a non-lifting rotation/assignment may be a reasonable accommodation that the employer might have to provide, unless doing so would impose undue hardship.
Can you address how Collective Bargaining Agreements (CBAs) affect the interactive process for accommodation?
This is a complicated topic, and I can’t cover it all here. But two basic points are: (1) the ADA prohibits employers from entering into CBAs that discriminate on the basis of disability, and (2) employers are required to comply with the ADA regardless of whether a CBA exists.
In the reasonable accommodation context, many times it will be possible to provide a reasonable accommodation without violating the terms of a CBA. If an accommodation is required that would violate the terms of a CBA, the employer and union may need to negotiate a variance. If a CBA is raising complicated ADA issues for you, you may wish to consult a private attorney.