A practical approach to using the ADA.
The ADA does permit employers to consider disability as a factor in hiring or promotion decisions when an employee's disability impacts on the person's performance of essential job functions. Further, ADA holds the employee responsible for making a request for accommodation, but it does not clarify the procedure.
This leads to a potentially dangerous complication. If you are an employee with MS, your employer's obligation to provide an "accommodation" within the meaning of the ADA generally arises at the point when you have become incapable of performing some essential job function without accommodation. Consequently, asking for accommodation could be regarded as informing your employer that you are not qualified for the position you hold or seek.
Calling on the protection of the ADA at that point could make it easier for an employer to terminate you on the basis of your disability. Your disclosure of performance deficiencies may lay the legal groundwork.
Early discussion can make a difference
The picture is not as dark as this almost Catch-22 description makes it seem. MS, because it "comes and goes", is not like many other disabilities. The accommodations you need early on rarely involve dramatic or expensive changes. You may need flex time to ease the strain of commuting, permission to take an on-the-job nap, or to move your work area closer to the bathroom. Equipment such as an overhead projector, a personal air conditioner, or a desk lamp with a highintensity bulb may give you the edge you need. Your entire office might benefit from having general air conditioning set at 70 degrees.
Negotiate for increased productivity
Prepare yourself to make requests as a matter of your increased productivity rather than your rights under the ADA. Take stock of your situation early; plan your discussion carefully; and rehearse what you want to say with a friend, family member, or an advisor from your local NMSS chapter. In general, the sooner you open a dialog with your employer, the more likely it is that your can justify your request as a means of enhancing your job performance rather than as a needed reasonable accommodation.
An early request and successful implementation of an accommodation will establish a cooperative relationship between you and your employer. Should major accommodations become necessary later on, both of you are more likely to reach agreement and successfully implement them.
Although the ADA is there to protect you, the law only provides an actionable remedy for a qualified employee. Remember, a request that comes too late may constitute an admission that without the accommodation you are not qualified. Instead, try to acquire accommodations that enhance your productivity as you go along so that, if possible, no single request ever constitutes an 'undue hardship" for your employer. It is better to avoid ADA terminology unless you are in a "last resort" situation.
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|Title Annotation:||Americans with Disabilities Act|
|Date:||Jun 22, 1993|
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