Can We Change Employment Terms After an Employee Goes on Disability?
The answer will depend on the terms of the employment contract. Generally, without an employment or union contract, an employer is free to change the terms of employment at will if not done for discriminatory reason.
The Americans with Disabilities Act (ADA) prohibits discrimination in employment against qualified individuals with disabilities. The employment provisions of title I of the ADA apply to private employers, State and local governments, employment agencies, and labor unions. Employers with 25 or more employees were covered starting July 26, 1992, when title I went into effect. Employers with 15 or more employees were covered two years later, beginning July 26, 1994. The ADA defines an "individual with a disability" as 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. The first part of the definition makes clear that the ADA applies to persons who have substantial, as distinct from minor, impairments, and that these must be impairments that limit major life activities such as seeing, hearing, speaking, walking, breathing, performing manual tasks, learning, caring for oneself, and working. An individual with epilepsy, paralysis, a substantial hearing or visual impairment, mental retardation, or a learning disability would be covered, but an individual with a minor, nonchronic condition of short duration, such as a sprain, infection, or broken limb, generally would not be covered.
The answer will depend in part on whether the employee's underlying condition qualifies as a disability under the Act. The employee must be qualified to do the essential functions of the job, with or without accomodation, to be a qualified person entitled to protection under the ADA. Employers are not required to relieve employees of work responsibilities or excuse them from violations of established work policies. But employers are required under ADA law to make "reasonable accommodations" for mentally disabled employees. These may include leaves of absence; minor modifications in work policy, supervision, or job position; or flexible work schedules.
The bar against discrimination in the workplace applies to recruitment, advertising and job application processes, hiring, upgrading, promotion, award of tenure, discharge, demotion, transfer, layoff, rehiring, compensation, leave, and various benefits. To be eligible for such protection, an employee must disclose the disability to the employer. Employees with disabilities who are qualified for their jobs may be entitled to reasonable accommodations in the workplace.
However, in many cases it may be difficult for the employee, especially where cognitive impairments are involved, to establish that he or she is both substantially limited in a major life activity and at the same time qualified for the job. The accommodations sought must also be reasonable, and reasonableness depends upon the nature of the particular job.
The accommodation must be specific. For example, an employer is not required to provide reduced stress in the workplace because the employer would not be able to control all of the factors that produce stress. Furthermore, compliance by the employer would depend upon the employee's asseessment of his or her stress level at any given time. The employee must prove that there is a need for the accommodations based upon the disability; the employee's desire for the accommodations is not sufficient. For example, the employee cannot insist upon the day shift rather than the night shift simply because the employee prefers the day shift.
Over 90 percent of ADA cases are won by employers because of the difficulties showing the reasonableness of the accommodations and proving that the employee is substantially limited but nonetheless qualified for the job. Before taking legal action, it is important to evaluate your legal position and to consider the possibility of informally working out a mutually acceptable solution with your employer. Many employers will agree to make reasonable accommodations in order to improve the performance of the employee. In the event legal action is pursued, professional documentation of the disability and the need for accommodations will be of great importance.