Gearing up for the Americans with Disabilities Act. (Cover Story)by Esposito, Michael D.
On July 26, 1990, President Bush signed into law the Americans with Disabilities Act ("ADA"). By signing this bill, the President responded to the call of an estimated 43 million Americans to pass the most sweeping employment legislation in decades. This article describes the practical action steps designed for employers, and particularly accounting firms, to comply with ADA's employment provisions.
ADA addresses the tendency for society to isolate and segregate individuals with disabilities. The ADA is a clear mandate to eliminate discrimination against individuals with physical and mental disabilities in all aspects of their employment. An employer must evaluate the capabilities of each person individually rather than make assumptions about what a person with a disability can and cannot do based upon some general understanding.
The consequences to accounting firms that discriminate against employees, even partners, with disabilities can be quite significant, as illustrated in a recent case under the Pennsylvania Human Relations Act. In Cain v. Hyatt, 734 F.Supp. 671 (E.D.Pa.1990), a former partner in a law firm recovered compensatory and punitive damages for wrongful termination of his employment due to his disability--AIDS. The case clearly demonstrates that it makes good business sense for professional firms to put their own houses in order by familiarizing themselves with ADA's employment provisions and by implementing the steps discussed later, which are applicable to accountants, support staff, and applicants. Doing so may also provide the background and understanding to point out to clients and others what they need to be considering.
The employment provisions of ADA are to take effect on July 26, 1992, for firms with 25 or more employees and on July 26, 1994, for firms with 15 to 24 employees. There is a question whether an employment relationship exists between persons classified, or acting as partners and their firms, and, thus, whether such persons should be counted as employyees for purposes calculating the number of employees required for the firm's coverage under ADA, as well as other federal job discrimination statues. Simply designating someone as a partner or claiming that he or she behaves like a partner may not necessarily remove such person from protection of ADA. An evaluation of an individual's status as an employee or partner should at least consider the extent to which he or she 1) controls and operates the firm's business, 2) is compensated as a percentage of business profits, and 3) has employment security. Now is an opportune time for firms to make sure that an accountant's actual duties and status are congruent with the partner designation in order to avoid a finding that he or she is really an employee.
FORM ADA TASK FORCE
Each firm should identify someone internal to be responsible for ensuring ADA compliance. This person should chair a task force designed to determine the ADA's impact on the firm and suggest changes to top management.
Develop Job Descriptions
An individual who cannot, with or without a reasonable accommodation, perform an essential job function will not be considered a qualified individual with a disability. Since an unqualified individual is not protected by ADA, it is important for firms to determine whether job applicants are, in fact, qualified. This requires an affirmative answer to two questions. First, does the individual satisfy the prerequisites for the position? This means reviewing whether the applicant has the appropriate educational background, employment experience, skills, or licenses for the position. For example, if an accounting firm requires that all incoming accountants have graduated from an accredited university, majored in accounting, received at least a 3.5 G.P.A. in his or her major, and passed the CPA examination, the firm need not provide an accommodation to an individual with a visual impairment who has not met these selection criteria. That disabled individual is not entitled to a reasonable accommodation because he or she is unqualified for the position and, thus, is not covered by ADA.
Assuming that the applicant satisfies these prerequisites, the next question is whether he or she can perform the job's essential functions, with or without reasonable accommodation. The term "essential functions" refers to primary job duties that are intrinsic to the position the individual holds or desires. In considering this example, if the applicant has satisfied the job's prerequisites, the firm might be required to provide an accommodation, such as a reader, to enable him or her to perform the job's essential functions. Importantly, the accommodation would not be required if it would impose an undue hardship on the accounting firm, which could mean a significant increase in operating expenses.
Accordingly, accounting firms are advised to identify job prerequisites and essential functions to determine whether an individual is qualified. Such identification applies to everyone, from the managing partner to the mail room clerk. Preparing written job descriptions before advertising for a job will assist in this identification process. Firms should identify the essential (an non- essential) job functions and prepare descriptions that may serve as evidence of their non-discriminatory intent. Inaccurate, vague, or outdated job descriptions can do more harm than good, and should be discarded.
Examine Employment Applications
This is an excellent time to review job applications for compliance with federal and state laws. They should contain questions about the firm's prerequisites (e.g., for accountants, graduation from an accredited university, accounting major, etc.; and for secretaries, a degree or certificate in secretarial science, etc.). Questions regarding an individual's disability status, health, past medical problems, and workers' compensation claims should be deleted.
Where practicable, the application should provide specific job-related questions to help determine if applicants can perform the essential functions of the job. Further, a statement might be placed on the employment application which informs job applicants that the firm encourages applications from qualified individuals with disabilities.
Examine Employment Tests and Other Selection Criteria
A firm may not use an employment test that tends to screen out individuals with disabilities unless the test is shown to be job-related for the position in question and consistent with business necessity. Further, a firm must select and administer an employment test in a manner that ensures that the test results accurately reflect the skills, aptitudes, or factors the test is designed to measure, rather than the impaired sensory, manual or speaking skills of the individuals being tested. For example, a firm should administer written tests orally to applicants who are blind, visually impaired, or who have a learning disability. However, a firm may use a test designed to measure sensory, manual, or speaking skills when those skills are job-related (e.g., a dexterity test for a secretary).
Examine Pre-Employment Drug Testing Procedures
If the firm administers drug tests that may detect prescription drugs taken for a disability, such tests should not be administered to an applicant until a conditional offer of employment has been made and the test is shown to be job-related and consistent with business necessity. Therefore, an applicant may only be required to take a pre-offer drug test which solely detects the use of illegal drugs. Such testing must comply with applicable federal, state, or local laws or regulations regarding quality control, confidentiality, and rehabilitation. This testing policy reflects ADA's prohibition against attempting to detect a disability prior to extending a conditional offer of employment.
Re-evaluate Medical Examination Procedures
If a medical examination is a required part of the hiring process, such examinations should be administered to all entering employees receiving conditional job offers in the same job category, e.g., accountants, all mail room clerks, etc. Also, the examination should be administered in a consistent manner in light of business necessity and safe job performance.
The following suggestion should be considered when evaluating examination procedures: examination results are confidential. In light of specific job requirements, firms may lawfully inform the following persons of the individual's medical history:
1. Certain professionals with supervisory responsibilities and supervisors of support staff regarding necessary restrictions on the employee's work or duties and necessary accommodations;
2. First aid and safety personnel if the disability might require emergency treatment; and
3. Government officials investigating compliance with ADA, upon their request.
Moreover, medical examinations should be performed after a conditional offer of employment has been extended. Finally, the information obtained from the examination should be collected and maintained on separate forms in separate files. Medical records must be kept separate from personnel records at all times.
PERSONNEL POLICIES AND PROCEDURES
Accounting firms should have their office manager and/or human resources staff trained to perform job analyses and to draft job descriptions.
Moreover, because of ADA's impact on pre-employment inquiries, now is an opportune time to refresh interviewers in the do's and don't of interviewing. It was not too long ago that interviewers had to be trained as to what questions to avoid asking female and minority job applicants. Now, new rules apply to individuals with disabilities. For example, it is unlawful to ask if an applicant is disabled or if he or she is associated with or related to someone who is disabled. Teaching sound interviewing techniques can increase the likelihood of selecting applicants who will succeed in the job, raised the comfort levels of both interviewer and applicant, and decrease the chances of being charged with discrimination.
During the pre-employment interview, applicants may not be asked if they have a disability or about the nature or severity of a disability. However, it is permissible to ask about an applicant's ability to perform job related functions. For example, if an essential element of an accountant's position will require three months of uninterrupted travel, job applicants may be asked if they can satisfy that travel requirement. They may not be asked if they have a disability that prevents them from doing so.
Since the office where interviews take place must be accessible, applicants with disabilities should be able to come and go with relative ease. A conference room may need to be reserved to facilitate interviews. Also, if the firm provides parking, spaces should be reserved for people with disabilities; other accommodations, such as ramps, might be appropriate.
Training programs should be developed to help supervisors generally prepare for their roles in addressing the specific limitations and needs of individuals with disabilities. Supervisors should be provided with written information, have contact with community resources, and be coached from peers who have successfully supervised workers with disabilities.
Further, employees at all levels must be sensitized to working with people with disabilities. It can be a very disconcerting experience for someone interacting with an individual with a disability for the first time. "What do I say?" "Do I offer to help?" "Do I ignore the disability?" In the long run, such training may help to create productive internal partnerships and minimize workplace disruptions and costly litigation. Such "sensitivity" training might have saved prospective employers thousands of dollars and pages of bad press in discrimination cases. In addition, physicians to whom applicants and current employees are sent for examinations to determine their suitability to work (or to return to work) should be apprised of the ADA and of the company's obligations to reasonably accommodate individuals with disabilities. Physicians must be sensitized to the need to carefully review job descriptions and/or fully understand the work demands so they can make informed decisions with respect to an individual's suitability to work. The examining physician should (1) specify the tasks that the individual cannot perform without undue risk to himself/herself or others, and (2) report only job-related information.
By providing physicians and perhaps employees with accurate job descriptions, employers will have, in effect, presented the parties with a "blueprint" to which they can refer when discussing ways to modify work so that it matches each employee's capabilites. Finally, examining physicians should understand that they may be called upon to testify on behalf of the employer in the event charges are brought on behalf of individuals whose employment is denied or limited on the basis of medical reports.
For members of management who are responsible for hiring decisions, they must understand the various hurdles that must be jumped before an individual can be hired. Such managers, whether they interview applicants or not must appreciate the company's obligations under the ADA so they do not make unrealistic or potentially unlawful demands upon their subordinates or those individuals responsible for providing them with job candidates.
Facilities managers are responsible for ensuring that the workplace is accessible to all individuals with disabilities, including job applicants, employees, vendors, customers, etc. Accordingly, facilities managers must appreciate their role in ensuring that their workplaces are accessible and that accommodations deemed to be reasonable are made and documented. Similarly, they must be able to justify why certain accommodations are not considered reasonable, (e.g. cost, logistics, etc).
Finally, not to be forgotten are the employees with disabilities, whose success, not unlike employees without disabilities, frequently hinge on their initial orientation and training. Accounting firms should introduce orientation and training programs for new employees with disabilities. Firms may want to have a veteran worker or a similarly situated employee with a disability orient the new employee as to basics, such as the location of rest rooms, and the existence of work rules and procedures, etc. Meeting co-workers is part of the orientation process.
Reconsider Safety Programs
Firms may want to review safety procedures and practices, emphasizing particular safety procedures for individuals with disabilities. Emergency drills should be planned, communicated, and conducted.
Reconsider and Revise Personnel Policies
Accounting firms are often guilty of maintaining outdated personnel policy manuals--if they have any manuals or policies at all. Now is a good time to clean up those policies or to introduce new ones with ADA in mind. The following represents a sample of policies that are impacted by ADA:
Attendance and Lateness. Policies concerning attendanace and lateness should be neutral, easy to understand, distributed to all employees, and consistently enforced. If an employee violates a neutral policy, he or she may be subject to termination even if the reason for the violation was excessive absenteeism to care for a disable spouse. An employee with a disability may also be disciplined if the violation exceeds the firm's attempts at reasonable accommodation.
Leave of Absence. Accounting firms should review their leave of absence policies, particularly with respect to leaves with pay. ADA does not entitle leave time than non-disable employees. Firms may wish to provide employees with disabilities with more leave without pay to accommodate them but are not required to pay them for such additional time.
Work Schedules. Development of part-time or modified work schedules should be considered to help accommodate employees, not only those with disabilities. The idea of a flexible work policy is not new and has been utilized by many organizations whose employees have client responsibilities. For example, Arthur Andersen & Co. initiated a flexible work policy several years ago for its managers. A flexible schedule can include working fewer days a week or doing some work at home. Since managers at Arthur Andersen are responsible for day-to-day client relations, the client load is reduced to accommodate part-time schedules. As for compensation, part-timers can be paid hourly or their salaries can be prorated to the number of days a week they are working. Such flexible schedules are considered to be accommodations under ADA and are often simple and inexpensive. They can also serve as a powerful recruitment tool for minorities, females, and individuals with child- care responsibilities.
Interview, Discipline, and Performance Forms. The forms must be designed to lead to objective responses and should indicate why an individual was hired, disciplined, demoted, etc. These forms are intended to provide a non-discriminatory record should an individual bring a claim alleging discrimination based on disability--or on some other protected basis such as age, race, sex, marital status, or veteran status.
Develop a Disability Policy and Compliance Procedure
A written policy should be developed and distributed explaining the firm's commitment to adhere to and enforce its obligations under ADA and othere relevant non-discrimination laws. If appropriate, it should be incorporated in the firm's overall non-discrimination/EEO policy statement. The policy should emphasize that all employees are expected to help achieve the firm's goals. Additionally, the policy might contain a procedure whereby job applicants and employees can file compliants if they feel they have been discriminated against on the basis of their disability. Such a procedure often deters employees from filing compliants with a government agency or in court, and also represents a sound employee relations practice.
Taking Stock of Resources
Resources in both the public and private sectors are available and should be evaluated as a potential contact for guidance. Firms should take steps to ensure that contacts are lined up at appropriate locations and that consultants and resources will be available to testify if litigation arises.
Prepare and Evaluate Reasonable Accommodation Options
A firm would not be liable for failing to provide an accommodation which was not requested. Absent a request, it is inappropriate to provide an accommodation. Because ADA requires that a firm have knowledge of an applicant's or employee's limitations before a duty to accommodate arises, such duty will generally be triggered by a request from the employee or applicant. However, if a person with a known disability is having difficulty performing his or her job, it would be permissible for the firm to discuss the possibility of a reasonable accommodation with that employee. An individual with a disability need not accept an accommodation, aid, service, opportunity, or benefit that the firm offers or provides.
Accommodations may include providing persons who need medical treatment with flexible or adjusted work schedules; providing individuals with sight impairments with a reader for a limited amount of time or with a visually-aided computer; and providing persons with mobility impairments who depend on public transportation a modified work schedule.
After an individual discloses his or her disability, consider discussing possible accommodations with the individual; identifying the barriers to job performance resulting from a particular disability; assessing the reasonableness of each accommodation in terms of effectiveness, equal opportunity and hardship; and implementing the accommodation that is most appropriate and imposes the least hardship on the firm.
When more than one effective accommodation is available, the firm may choose the one that is least expensive or easiest to implement as long as it provides a meaningful employment opportunity. A meaningful and equal employment opportunity may involve ensuring that a visually-aided computer be as easily accessible to an individual with a sight impairment as is a computer used by an employee with perfect eyesight. The preference of the applicant or employee must be given primary consideration unless another effective accommodation exists or the accommodation request poses an undue hardship on the firm.
When ascertaining the reasonableness of accommodations, a firm is not required to reallocate a position's essential functions. As noted earlier, the essential functions are those that the individual who holds the job must perform, with or without reasonable accommodation, to be considered qualified for the position. For example, the position of accountant requires the individual who holds the job to read. A firm would not have to provide an individual who is legally blind with a full-time assistant to read for him or her. In that situation, the assistant would be performing the job for the individual with a disability rather than assisting the individual in performing the job. However, providing a reader for a limited amount of time to an accountant with a sight impairment may qualify as a reasonable accommodation.
Prepare both Work and Non-work Areas for Reasonable Accommodation
Employees with disabilities must not be segregated into particular work areas. They must have an equal and meaningful opportunity to perform the job. Further, non-work activities offered by a firm, like social outings, athletic events, and so forth, should also be integrated. Staff lounges and lunch rooms that contain coffee pots, refrigerators, and other appliances must be accessible to all employees. Thus, an inaccessible second floor lunch room may need to be relocated to a first floor room to enable access for disabled employees.
Document Accommodation Efforts
A firm's attempts to reasonably accommodate applicants and employees with disabilities should be fully documented. Such a "paper trail" is valuable in the event legal action is commenced. Internal checks and balances procedures should be incorporated to ensure that all reasonable efforts at accommodation have been made and that the document is free of incriminating statements.
CONTRACTUAL PROVISIONS THAT EFFECTUATE DISCRIMINATION
All contracts should be drafted and all existing contracts with employment agencies, unions, organizations providing fringe benefits and training, and insurance companies should be reviewed to ensure that they contain non-discriminatory terms and language. Moreover, firms should consider including a contractual provision providing that the party with whom the firm is contracting agrees to be responsible for the cost of reasonable accommodation incurred by the firm due to that entity's breach of ADA provisions (e.g., failure to make meeting and training rooms accessible).
Review Insurance Contracts and Plans
Pursuant to its medical plan, a firm may not refuse to insure, limit the coverage available to an individual, or charge a different rate for the same coverage solely because of a physical or mental impairment except when based on sound actuarial principles or related to actual or reasonably anticipated experience. Similarly, a firm may not deny health insurance coverage based solely on a person's diagnosis or disability. Thus, a firm may offer an insurance policy that limits coverage for certain procedures or treatments, such as only a specified amount per year for mental health coverage. A limitation may be placed on reimbursements for a procedure or the types of drugs or procedures covered, such as a limit on the number of x-rays or non-coverage of experimental drugs or procedures; however, that limitation must apply to persons with or without disabilities.
Importantly, ADA does not affect pre-existing condition clauses included in insurance policies which may limit or exclude coverage of a disability diagnosed before the individual began to work for the firm. Thus, firms may continue to offer policies that contain pre-existing condition exclusions, even though they adversely affect people with disabilities, so long as the clauses are not used as a subterfuge to evade the purposes of ADA.
NOT THAT FAR AWAY
July 26, 1992, is not as far off as it may seem, and firms are advised to start gearing up now for ADA to avoid unnecessary--and costly-- litigation later. Indeed, firms may already be covered by other state statutes that parallel federal statutes. Many already have statutes prohibiting discrimination on the basis of disability, and ADA may provide them with an incentive to modify their statutes to incorporate "mini-ADA" provisions to cover firms with fewer than 15 employees. Congress provided for a phase-in period to promote compliance and ensure an orderly transition. Prudent accounting firms would be well served if they take advantage of the grace period provided by considering the action steps set forth in this article. unkeyable
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