On the second Wednesday of each month, at 2:00 p.m. eastern, we broadcast a webinar on a topic related to Title I of the ADA. This blog post is based on questions from the audience:
“Can the employee tell the employer what they want as an accommodation?” The spirit of the Interactive Conversation is that the employer and employee both take responsibility for identifying an accommodation. However, the concepts of productivity, safety, and undue hardship allow the employer to have the final say on whether or not to offer a particular accommodation. The employee can suggest an accommodation but the employer has the power to grant or deny the accommodation.
“If a physician states an accommodation, does the employee have the right to deny the company’s accommodation provided?” Yes, both the employer and the employee have the right to not follow a physician’s recommendation for a particular accommodation. Assuming that both parties are faithfully involved in the interactive conversation, they will probably discuss the physician’s input but not be bound by it.
“You are saying that the first focus of our job descriptions should be on essential functions. They each list the weights that have to lifted, the licenses a worker needs, and the hours they have to work. What is the best way to get up to date?” Keep in mind that weight lifted, just like licenses needed, is not an essential function. The reason I say that a solid essential function list is the basis of a modern job description is because of reasonable accommodation. We do not need to change the qualification standards, productivity standards or essential functions of a job; we do need to accommodate the physical demands of the standards and functions of the job. The essential functions determine the parameters for deciding if an individual is qualified for the job, with or without accommodation. The job is comprised of its essential functions, not its physical demands (lifting, carrying, pushing, pulling, etc.)
“You started the webinar by saying that the origin of the employee’s impairment does not matter, i.e., it can be the result of a skiing accident, an accident of birth or a worker’s compensation injury. What about self-inflicted impairment?” Good question, and the same answer holds true. The source of the impairment does not affect whether an individual is covered by Title I of the ADA. The focus is on the ability of the individual to execute the essential functions of the job with or without accommodation.
“When an employee becomes obese is it possible for them to no longer be a qualified individual?” Yes. If the individual’s physical condition results in them being a direct threat to themselves or others, or if the condition renders them unable to execute the essential functions of the job with or without accommodation, they are no longer qualified for that particular position. Keep in mind that transfer to a job for which they are qualified remains the accommodation of last resort.