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Using ADA in the Workplace

Using ADA in the Workplace

Issues

Here's an introduction to the Americans with Disabilities Act (ADA), covering:

  • Disabilities Defined Under ADA
  • Some Sample Costs of Job Accommodation
  • Contract Language
  • Grieving Job Accommodations
  • JAN - the Job Accommodation Network

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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 UE 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

Disabilities Defined

Under ADA, a person with a disability:

  • has a physical or mental impairment that substantially limits one or more major life activity. This can either be apparent (problems walking; seeing; speaking, ec.) or "hidden" (hearing loss; HIV/AIDS; epilepsy; diabetes; etc.);
  • has a record of such impairment (such as recovery from cancer or mental illness);
  • is regarded as having an impairment—conditions that people often mistakenly believe are limiting (using a hearing aid; scars, burns or disfigurements; involuntary motions).

Illegal drug users are excluded. However, ADA does protect people with a drug abuse history who are not currently using drugs. Advanced age is not an impairment; however age-related conditions are covered.

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 UE 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 UE 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.

In one case, a $65 electric screwdriver was all that was needed to keep a worker who had developed carpal tunnel (a repetitive motion injury) on the job. When everyone began using the electric screwdrivers, the company’s workers’ compensation costs dropped as well.

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.

Information Requests

Good Advice:
The Job Accommodation Network

Need some good advice about how a job could be changed to accommodate a disabled member?

Job Accommodation Network (JAN) Logo

The Job Accommodation Network (JAN), established under ADA, offers free and effective advice on providing job accommodations.

In nearly nine out of ten cases, JAN has provided innovative suggestions costing less than $1,000—advice that’s allowed disabled workers to return to the job, be hired for new positions, or be promoted.

Where to start? JAN suggests the first person you talk with is the disabled member. In JAN’s experience, the person who is often able to provide the best — and least expensive — accommodation is the affected employee.

Job Accommodation Network:

JAN: 1-800-526-7234
TTY: 877-781-9403
Web: http://janweb.icdi.wvu.edu/

Job Accommodation Network
PO Box 6080
Morgantown, WV 26506-6080

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.

Typical Questions

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.

What’s “Reasonable?”

  • 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 shop floor unity and the role UE plays in the lives of our members.

Sample Contract Language

"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."

Local Grievance Struggles —
Grieving and Winning Job Accommodations

• At UE Local 293 (Essex in Newmarket, NH) the shop committee organized a meeting with the company when the company delayed its decision over whether it would accommodate a member who was deaf who had bid on a skilled shipper job. The committee figured out that the worker could do the job if the company provided her with proper training and translation equipment. The company finally awarded the worker the job, provided the training and the phone translation equipment and thus — with accommodations — the most senior qualified worker who bid on the job, got the job.

• At UE Local 221 (CVOEO in Burlington, VT) one member's back disability and severe asthma caused her to have problems with steps and walking long distances. The local filed a grievance seeking accommodations for her in the form of a guaranteed parking spot near the building and access to the copier (the only copier was upstairs.) While the agency maintained that they were "grandfathered" and didn't have to comply with ADA, the local persisted and was able to secure a reserved parking spot for her and a computer was installed on the floor where she worked. In the process, the local had researched filing an ADA suit, but found that in the end, the grievance procedure was the quickest and most effective way to handle the fight.

Some Sample Costs of Job Accommodation

  • A plant worker who is hearing impaired was able to use a telephone amplifier designed to work in conjunction with hearing aids, allowing him to retain his job and not be transferred to a lower paying job within the company. Cost $23.95.
  • A worker with Carpal Tunnel Syndrome due to repetitive wrist motion was able to work as a seamstress with a pair of spring-loaded ergonomically designed scissors. Cost $18.00.
  • A groundskeeper who had recovered from a stroke had limited use of one arm, yet needed to be able to rake grass. The use of a detachable extension arm on the rake allowed him to grasp the handle on the extension with the hand with limited use, and control the rake with his functional arm. Cost $19.80.
  • A headset for a phone allowed an individual with cerebral palsy to write while talking. Cost $49.95.
  • A person who used a wheelchair could not use the furniture in the office provided for her because the desk height was too low for the wheelchair to fit into. Raising the desk with wood blocks allowed the proper amount of space for the wheelchair to fit in. Cost $0.
  • A receptionist who was blind was provided with a light probe which allowed him to determine which lines on a telephone were ringing, on hold, or in use at his company. Cost $45.00.