Using ADA in the Workplace
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It can happen without warning. You, or someone you know, is permanently disabled; develops a disabling disease; or suffers from a chronic physical or mental condition. Odds are, you probably know someone like this, and in the past, that may have ended a work life.
But under the Americans with Disabilities Act (ADA), disabled workers can remain on the job or be hired for jobs that they can perform with a reasonable accommodation. This is a broad workers’ rights law that covers just about any workplace with 15 or more employees. As LEOSU stewards, it gives us opportunities as well as an obligation to represent workers in ways we couldn’t have in the past.
The idea behind ADA is simple: wherever possible, employers are required to provide either a “reasonable accommodation” that allows disabled workers to perform their jobs at the same level as workers without a disability or transfer them to a vacant job they can perform.
29.5 MILLION REASONS
Nearly one-in-five Americans has some type of disability—most of which are not readily apparent. Such things as hearing loss, disease and chronic depression can be as disabling as a bad back or a permanent physical injury. In numbers: 48.9 million Americans have disabilities; 29.5 million are between the work ages of 15 and 64.
ADA applies to both employers and unions—and expands our ability to build unity in LEOSU workplaces. A source of strength and pride in our union has always been our determination to “unite all workers, regardless …” of who they are. ADA, which requires the same aggressive representation of disabled workers as any other LEOSU member, opens the door to new opportunities.
A BENEFIT FOR EVERYONE
ADA simply requires that employers and unions figure out ways to keep disabled workers on the job—or to allow disabled workers to be hired like anyone else. The solution doesn’t have to be expensive, either—and, in some cases, can actually save the boss money.
Accommodation can also be as simple as allowing a worker to sit down at his or her station by supplying a chair or lowering a work table. Headaches, caused by the glare of a computer screen, may be eliminated by the addition of an inexpensive anti-glare screen.
The ADA requires an employer to treat information concerning an employee’s medical condition and medical history as confidential. At the same time, the employer has a duty under the National Labor Relations Act to provide the Union with relevant information in order to better represent the membership. Where a conflict occurs, according to the General Counsel, the Labor Board “balances the Union’s need for the information against the assertion of confidentiality” and in cases that have come before it, generally has directed the employer and the Union to bargain and to accommodate both interests.
Does ADA provide a license for the employer to unilaterally circumvent negotiated seniority provisions, shift preference or job classifications? No. If an employee with a disability requests an accommodation that would involve a change in terms or conditions of employment, the employer must comply with the contract unless a change is negotiated with the union.
WORKING WITH ADA
Here are some guidelines:
ADA does not require any form of bumping. Accommodation must be made to keep a worker in their old job—or, they must be placed in a vacant position.
ADA is not a license for the employer to violate the contract to the detriment of another employee.
Inform members about their rights under ADA and encourage them to work with the union if they’ll be seeking accommodation from the boss. Don’t wait, either. Talk with members who you think might benefit from ADA.
Keep in mind that a “reasonable accommodation” does not have to be the best accommodation. While the “best” solution for a disabled member might be a vacant high-seniority job, an “accommodation” that keeps them in their current job is okay.
Make sure you explore what’s possible. Often when people say “a job can’t be done that way” what they’re really saying is “I’ve never see it done.” The fact that no one has ever sat down at a particular job does not mean that it can’t be done by someone who is sitting!
A PROACTIVE APPROACH
The ADA provides a basis to creatively look for reasonable solutions that do not unduly impinge on the rights of anyone. A worker with a disability is not getting something special, but rather is getting an accommodation to enable him or her to counteract obstacles that have prevented them from fully using their talents and abilities. While only those individuals who are qualified and able to perform the essential functions of a job with reasonable accommodations are eligible for ADA’s protection, we can play a major role in asserting those rights.
ADA is one of the few laws passed recently that actually benefits workers. If used effectively, we can use ADA to strengthen our Union and the role LEOSU plays in the lives of our members.
Sample Contract Language that we try to negotiate on behalf of our members in regards to ADA.
“The company and the Union will form a joint committee to review any special placement and/or reasonable accommodation to be afforded a qualified employee prior to the employee being placed on an open job or afforded a permanent shift change.
An employee who has satisfied the company that he/she meets the legally established definition of a disabled person under the terms of the American With Disabilities Act of 1990 will be afforded a reasonable accommodation, as prescribed by the Act. Such accommodations will be decided on a case by case basis.
It is understood that while the ADA provides for reasonable accommodation, such accommodation may not necessarily be the individual’s preferred accommodation. Where possible, the terms of this collective bargaining agreement will be respected.”