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February 7, 2013

Midyear Panel Discusses Disability Issues in the Workplace

The Midyear Meeting program “Disability Issues in Employment and Labor Law” on Feb. 7 in Dallas aimed to guide employers through the complex array of federal and state laws and regulations that protection workers with disabilities. The program assisted employers in developing a comprehensive strategy for hiring and retaining these workers.

Panelist Susan Motley, supervising attorney over Disability Rights Texas’ HEAT team, a statewide team of attorneys and other staff members who handle civil rights cases involving disability-related discrimination, said it is not enough to treat employees with disabilities the same as other employees. “Instead, employers must provide reasonable accommodations to qualified individuals with disabilities (QIWD) when the accommodation would not impose an undue hardship on the employer,” she said.

A “reasonable accommodation,” Motley said, is a change to a work environment that will enable a qualified applicant or employee with a disability to participate in the application process; to perform essential job functions; or to ensure that a QIWD has rights and privileges in employment equal to those of employees without disabilities.

Accommodations can include job restructuring, reassignment or modified work schedules, she said. They can also include technology or communication tools (readers, interpreters), modified exams and making facilities readily accessible and usable by individuals with disabilities.

According to Motley, accommodations are not required if the employer can show undue hardship, or action requiring significant difficulty or expense, considering: the nature and cost of the accommodation needed; the facility’s number of employees and overall financial resources; the effect on expenses, resources and operations; and the overall size and nature of operations.

Martin Ebel, deputy director of the Houston District Office of the Equal Employment Opportunity Commission, said the first of two prongs of disability warrant an accommodation. The first prong is a disability and the second prong is a record of a disability. “Disability means a physical or mental impairment that substantially limits one or more of the major life activities of such an individual, or a record of such an impairment,” he said. “If there is a substantial impairment of a major life function, the employer should move directly to addressing accommodations.”

Always check back to determine the effectiveness of the accommodation, Ebel said. Check in at a week, a month and a year, he suggested.

A reasonable accommodation does not include removal of a job function, personal use of items such as a hearing aid, lowering performance standards or creating a job, he added.

Kristin Bauer of Jackson Lewis LLP said Americans with Disabilities Act EEOC charges are on the rise. Charges were 19,453 in 2008 and were 26,379 in 2012. The total monetary recovery for ADA lawsuits has also risen. In fiscal year 2008, $3.6 million was recovered for ADA claimants; in fiscal year 2012 $5.4 million was recovered for ADA claimants.

Judge Marguerite D. Downing was the moderator of the panel.