When the new Americans with Disability Act (“ADA”) amendments go into effect on January 1, 2009, millions more disabled Americans (or those perceived as disabled) are expected to be protected by the law than have been helped since the 1991 law was enacted. Click here for more information about these amendments. This of course means that your odds as an employer of being sued for disability discrimination will increase.
As a business owner or manager, if you aren’t completely comfortable about how to apply the ADA in your workplace, now is the time to prepare before the January 1 deadline. There are many ways to prepare, including training all of your supervisors on working with and accommodating disabled employees and developing internal procedures for dealing with requests for accommodation. You should review the company interviewing procedures to assure yourself that no one is asking about an applicant’s prior worker’s compensation history or other loaded questions. You should also be certain that medical exams are being given to all persons to whom you offer jobs (or to none), so that it is clear you are not trying to weed out disabled applicants.
One important preparation that you should undertake today and complete by the end of 2008 is a review of all of your job descriptions. I can hear every manager reading that last sentence expel a heavy sigh. I know that writing job descriptions is a pain, but it is the single most important piece of evidence during a disability discrimination case.
Each job description should include a specific list of the “essential functions” of that job, meaning the fundamental duties of the job. Be careful to separate out the essential duties from the marginal ones. For example, overnight travel may be required infrequently of a clerical person, but may be essential to a company sales representative. Therefore, the ability to travel should not be listed as an essential function in the job description for the clerical position.
Listing the physical requirements of every job is absolutely essential in a good job description. It is a mistake to assume that a white-collar job description doesn’t need a physical duties section. My job as a lawyer doesn’t seem that physical, but what about the physical ability to communicate? Talking and hearing well is essential because I must communicate clearly to be able to advise my clients. Lawyering can be sedentary, as it is right now as I write this blog entry, but it can also be very strenuous, as during a long trial in federal court, where I am required to stand during any witness examination or statement.
There are also many mental and emotional functions of a job that should be listed since the ADA protects mentally impaired workers equally with physically impaired workers. For example, in some companies, the ability to interact effectively with others, to work under pressure, to multi-task and follow-through, to manage time and to be organized is essential to most of the jobs. If that is the case, these qualifications should be listed in the job description.
Don’t panic when you think about revising (or creating for the first time) your job descriptions. There are many sources for examples, such as job description software, your trade association or even your competitors in your industry. Have the employee currently holding a job update his/her own description with the duties that employee actually performs. Then add the physical and mental requirements, as well as some boilerplate warning the employee of the fact the job description can change at any time.