ADA vs. OSHA

The Americans with Disabilities Act and its amendments give disabled workers certain legal rights. But sometimes those rights seem to conflict with the employer’s need to maintain a safe workplace. How can you maintain a safe and efficient working environment that also respects all employees and their needs?

Most employers strive to accommodate employees with disabilities. However, when safety becomes an issue, employers can be confused about which regulations apply and what actions to take.

The Americans with Disabilities Act of 1970 and the ADA Amendments Act of 2008 prohibit discrimination against qualified people with disabilities in businesses with 15 or more people. The ADA defines a disabled person as one who has a physical or mental impairment that substantially limits one or more major life activities. The ADA also covers people who have the appearance of being impaired.

The U.S. Equal Employment Opportunity Commission, which enforces the ADA, defines a qualified person as someone who can perform the essential functions of a given job – with or without accommodation. “Reasonable accommodation” can include:

Making existing facilities readily accessible and usable for the disabled person

Restructuring the job, modifying the work schedule or assigning to another job

Buying or modifying equipment

Adjusting exams or training materials

Providing qualified readers or interpreters.

However, the federal Occupational Safety and Health Act obligates the employer to provide a safe workplace by furnishing each of his employees a place of employment that is free from recognized hazards that are causing or are likely to cause death or serious physical harm. If an employee’s disability could cause harm to himself or another in the workplace, employers need to assess whether he or she can safely perform a job with reasonable accommodation.

Some specific situations employers could encounter include:

Chronic conditions: The ADA protects people with chronic physical conditions that limit their life activities. For example, Steve drives a delivery truck. When his supervisor sees him sleeping between deliveries, Steve discloses that he has sleep apnea, an ADA-protected impairment that causes people to fall asleep without warning. His employer becomes concerned that Steve poses a safety threat because he may fall asleep at the wheel. The company requests medical tests. If tests reveal Steve’s condition could threaten safety, the company needs to explore whether it can reasonably accommodate Steve’s needs while maintaining safety standards. Perhaps Steve can be reassigned to a desk job.

Communicable diseases: The ADA defines AIDS and HIV infection as disabilities, and employees with those conditions require accommodation. People who are perceived to have AIDS or HIV are also protected. When Mary, suffering liver damage from Hepatitis A, applies for work at a computer company, she is not required to disclose her disability. However, if she wants reasonable accommodation in her work schedule in order to get treatment, she will need to disclose her condition so her employer can accommodate her.

If Mary were to apply for a job at a restaurant, her disability would disqualify her, based on Food & Drug Administration regulations regarding communicable diseases. It is unlikely that the restaurant could offer reasonable accommodation.

Mental disorders: Mental disorders can also be a protected disability. Employers need to recognize that many mental illnesses do not cause safety issues. According to Rebecca Speer, a principal of Speer Associates, an employment law consulting firm in San Francisco, employers should not let their own prejudices influence their perceptions. “If you happen to know that an employee has a diagnosed mental disorder, don’t speculate on his impairment,” Speer said.

If an employee seems to be acting unsafely, your first step is to define the essential job functions so you can evaluate the employee’s actions within that context. Then Speer recommends talking to the worker and engaging in a legally compliant, interactive process that enables the employer to evaluate whether the employee suffers from a disability covered by the ADA and, if so, whether the employer can and should provide accommodations that would enable the employee to safely perform the essential functions of the job.

If an employee with a mental illness is angry or aggressive, you may need to turn to a psychologist who specializes in assessing employees for safety risks. The ADA provides protection to employees with mental disorders, but does not require a business to retain an employee who demonstrates a credible threat of violence. In that situation, it would be prudent to also consult with an employment law attorney before terminating someone who has a known mental disability and demonstrates disruptive behavior.

Many Americans with disabilities felt that the current laws in place provided a gateway to the playing field (access to insurance), but that the current structure unfairly precluded these individuals when insurance companies would raise premiums beyond affordability or simply denied insurance coverage because of pre-existing conditions. The Affordable Care Act will essentially trump all existing laws and will level the playing field for your employee with disabilities. It will also help you recruit a wider variety of workforce because once ACA takes effect, your insurance plan will become much more marketable to those that have a disability.

Steve Dalinis has worked in the insurance industry more than 20 years and is president of sales for MFG Benefits. Contact him at steve@mfgbenefits.com or 775-329-3041 ext. 128.