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Employment Process Employment Process

The ADA and Collective Bargaining Issues

Revised Date: 2001; 2010
Original Date: 1997
Authorship History: This publication was written in 1997 and updated in 2001 by Laurie M. Johnson, Esq., True Walsh and Miller LLP. It was updated in 2010 by Elizabeth Reiter, independent legal consultant, Ithaca, N.Y.
 
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What is the Americans with Disabilities Act?

 

The purpose of the Americans with Disabilities Act (ADA) is to protect and guar­antee access and participation for persons with disabilities in employment, pub­lic accommodations, public services, transportation, and telecommunications. Title I of the ADA prohibits discrimination against qualified individuals with disabilities in all terms and conditions of employment, including recruitment, pre-employment screening, hiring, benefits, promotions, layoff and termination. Employers of 15 or more employees are subject to Title I of the ADA, as are labor organizations, employment agencies, and joint labor-management committees.

Under the ADA, an individual with a disability is a person who: has a physical or mental impairment that substantially limits one or more major life activities, has a record of such an impairment, or is regarded as having such an impair­ment. Courts determine whether an individual is substantially limited in per­forming a major life activity by comparing the performance of the person in question to that of most people in the general population. The impairment need not prevent or severely limit an individual’s major life activity in order to be con­sidered “substantially” limiting. Also, the fact that an individual uses mitigating measures (such as medication or equipment, for example) to minimize the effects of the impairment has absolutely no bearing upon whether it substantially limits a major life activity. Under the ADA, an employer may not deny anyone the opportunity to apply for a job be­cause of a request to reasonably accommodate his or her disability during the application process, nor may an employer deny an em­ployment opportunity to a qualified employee with a disability because he or she needs a rea­sonable accommodation in order to perform the job’s essential functions. An employer is not required to provide any accommodation that would impose an undue hardship on it, however.

How does the ADA affect Unionized Employers?

 

Private sector employers whose employees are represented by a union are subject to both the ADA and the National Labor Relations Act (NLRA). Under the NLRA, the union is the exclusive representative of the employees, and an employer is prohibited from dealing direct­ly with employees concerning the terms and conditions of employment. Furthermore, the NLRA prohibits an employer from implement­ing any change in the terms and conditions of employment without offering the union an opportunity to bargain over the proposed changes.

The ADA prohibits employers and unions from entering into collective bargaining agree­ments that discriminate against individuals protected by the ADA.

What Obligations does a Union have under the ADA and the NLRA?

 

The employment discrimination provisions of the ADA apply to unions as employers and as bargaining agents. Under the NLRA, a union has a duty of fair representation; that is, the union must act reasonably, in a non-discrimi­natory fashion, and in good faith with respect to the employees it represents. This duty might require the union to assist an employee in requesting a reasonable accommodation and in working with the employer to deter­mine the reasonable accommodations avail­able to that employee.

What is a “Reasonable Accommodation” under the ADA?

 

Under the ADA, the individual with a disabil­ity and the employer engage in an interactive process to determine whether a reasonable ac­commodation exists. Once the individual with a disability requests an accommodation and the employer determines the essential func­tions of the position at issue, the parties must then determine what limitation(s) the individ­ual’s disability impose on the job. The parties evaluate accommodations that would allow the individual to overcome job limitations and then select an effective and reasonable accom­modation, if available. While the employee’s preference is considered, the employer has the discretion to choose between equally effective reasonable accommodations. The individual with a disability may disclose medical information to the employer during the reasonable accommodation process. The ADA requires that employers keep medical information concerning job applicants and employees confidential and maintain it in files separate from personnel records. Persons involved in the reasonable accommodation process who have access to this type of infor­mation have a continuing obligation to main­tain its confidentiality.

What is the Reasonable Accommodation Process?

Under the ADA, the individual with a disabil­ity and the employer engage in an interactive process to determine whether a reasonable ac­commodation exists. Once the individual with a disability requests an accommodation and the employer determines the essential func­tions of the position at issue, the parties must then determine what limitation(s) the individ­ual’s disability impose on the job. The parties evaluate accommodations that would allow the individual to overcome job limitations and then select an effective and reasonable accom­modation, if available. While the employee’s preference is considered, the employer has the discretion to choose between equally effective reasonable accommodations.

The individual with a disability may disclose medical information to the employer during the reasonable accommodation process. The ADA requires that employers keep medical information concerning job applicants and employees confidential and maintain it in files separate from personnel records. Persons involved in the reasonable accommodation process who have access to this type of infor­mation have a continuing obligation to main­tain its confidentiality.

Is an Employer Required to Meet its Obligations under the ADA and the NLRA?

Employers must balance the interests of em¬ployees seeking accommodation under the ADA against the employer’s NLRA obliga¬tions regarding the union and the collective bargaining agreement. The Equal Employ¬ment Opportunity Commission (EEOC), the federal agency responsible for the enforcement of the ADA, has rejected the position that a reasonable accommodation imposes an undue hardship simply because it would violate a collective bargaining agreement. Rather the employer first should determine if it could provide a reasonable accommodation that would remove the workplace barrier without violating the collective bargaining agreement. If there is no such accommodation, then the employer and union should attempt to nego¬tiate a variance to that part of the collective bargaining agreement that conflicts with a requested reasonable accommodation (such as a “light duty” assignment or a transfer to a position with different physical and mental requirements). An employer cannot use the existence of a collective bargaining agreement as its reason not to offer or implement a rea¬sonable accommodation unless it can show that the request would have an adverse affect on the other employees in the bargaining unit. The greater that adverse affect, the more likely it is that the accommodation is not reasonable.

 

The General Counsel for the National Labor Relations Board (NLRB), the federal agency responsible for enforcement of the NLRA, has stated that for a reasonable accommodation that does not affect terms and conditions of employment (for instance, putting a desk on blocks, providing a ramp, Braille signage or providing an interpreter) an employer need not negotiate with the union representing its employees, and the employee could request the accommodations directly from its employer.

Employers would be required to negotiate with the union if the requested accommoda¬tion would cause a material, substantial, or significant change in the terms and conditions of employment, such as requiring a change in the collective bargaining agreement itself. A proposed accommodation that would ad¬versely affect the seniority rights of other em¬ployees would not be reasonable, and there-fore, an employer and union refusing such an accommodation would not violate the ADA. The parties, the employer, the union, and the individual requesting the accommodation, however, would still be required to engage in the good faith interactive process to determine whether any other type of accommodation is available.

What Proactive Approaches are Available to Employers and Unions to Meet the Requirements of the ADA and the NLRA?

 

Employers and unions may be able to elimi­nate or reduce the potential conflicts between the ADA and the NLRA through collaborative long-range planning. Employers and unions can create a cooperative environment with respect to their obligations under the ADA and the NLRA. At the outset, the employer and the union might review their collective bargaining agreement to ensure that individu­als are not subject to disability discrimination. The employer and the union may also consid­er including in the contract specific protections or safeguards for individuals with disabilities, procedures for the reasonable accommodation process, or a light duty program.

Employers and unions could also present edu­cational programs on the ADA, such as open discussions on the effects of the ADA on the work environment by both management and union personnel.

A joint employer-union committee could be formed to discuss and consider ADA compli­ance issues. The labor-management commit­tee could consider requests for reasonable ac­commodation and work with employees in the informal interactive process of determining a reasonable accommodation. The committee might also assist in the determination of essen­tial job functions, review necessary accommo­dations, and analyze what accommodations are available or possible within the context of the collective bargaining agreement.

What Role Can the Shop Steward Play in Assisting Implementation of the ADA?

 

The union steward or business agent is the person in the union with whom each member may have direct contact – to whom members bring their problems and grievances, from whom members get information, and who has access to employees during the work day. The union can disseminate vital information about the ADA through the shop steward or business agent to its members, such as the illegality of discrimination against individuals with dis­abilities and how the reasonable accommoda­tion process works.

Conclusion

 

These proactive approaches will serve both the employer and union with respect to their obli­gations under the ADA, to provide reasonable accommodation, and under the NLRA, to bar­gain where necessary over reasonable accom­modations that effect changes in the terms and conditions of employment. Most of all, these proactive approaches will foster positive and productive work environments for employers and unions, and further the goal of the ADA, the inclusion and appreciation of persons with disabilities in the workplace and society.

 

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