What is required for protection under the ADA?

by Michael Haberman on February 28, 2018 · 0 comments


Reasonable accommodation is always an important part of a decision in an ADA case.

In a situation of an interview or dealing with an ADA situation, I tell clients and students alike that one of the things they need to have memorized is the question “Can you perform the essential functions of this job, with or without a reasonable accommodation.” It is truly essential.

Must be able to perform

If an employee cannot perform the essential functions of the job they are not eligible for protection under the ADA. This was reaffirmed by a decision of the Seventh Circuit Court of Appeals. In this case, according to Jonathan Crotty, of Parker Poe, a hospital was able to deny a position to an employee, even though he was disabled. To be a doctor at this hospital the employee needed to have passed licensing tests. The employee was unable to pass the third test. Passing this third test is a requirement to practice medicine in the United States. This individual was unable to pass, even though given three times to pass the test. He then resigned, but then sued for discrimination. The courts recognized that, even though accommodated with a third attempt, the employee was just not able to perform the essential function of the job, aka, passing the test, and they dismissed his case.

Being able to perform the essential function is important

The ADA does not require that employers eliminate essential functions when considering initial employment or continued employment situations. The individual needs to be able to demonstrate that they can perform the essential function. If they cannot demonstrate that ability they can be denied the position. Of course, that opportunity to demonstrate needs to include a reasonable accommodation opportunity. What is reasonable is a whole nother conversation.

Documentation

Don’t forget the documentation of the “interactive” discussion you are having with the employee about their situation. You will need to be able to defend your actions if need be. This case, however, shows that you don’t need to automatically cede to every request for an accommodation.


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