Important Legal Tips for Communicating with Disabled Employees

Since everyone deserves to be treated with respect, employers must make sure that they’re communicating professionally and politely with all their disabled workers. Careless employers who speak callously with their disabled workers not only set a poor example for everyone else in the workplace – they also increase their chances of being sued for unlawful discrimination under the Americans with Disabilities Act (ADA).

Here are some other important tips that can help you create a more pleasant work environment for everyone – that’s also fully compliant with the ADA.

Examples of workplace situations that may require special communication skills

  • When someone present in a meeting has a hearing disability. Should there be an employee present with a known hearing impairment, always remind everyone to speak one at a time – and never “over” one another. That will help everyone more easily follow the conversation and possibly take notes. Of course, never refer to the person by name who may need this simple accommodation.
  • Always speak directly to the disabled person. Even when someone has a sign language interpreter, always turn and speak to the disabled person – and not their helper or other companion – whenever possible.
  • Be honest with the disabled during regular workplace evaluations. This is important so they’ll have the chance to improve their performance – and request any new accommodations they may need. They deserve an honest appraisal like everyone else. This will also limit the chances of painful misunderstandings in the future. Be willing to give them concrete ideas for how they can improve the quality of their work.
  • Be prepared to shake the hand of a disabled person – even if this means shaking their left hand and not their right one. This is a simple gesture that communicates respect and equality. You don’t need to shake the person’s hand for an extended time period.
  • Always introduce yourself when speaking with someone who is sight impaired. Be sure to also identify everyone else who is present during the conversation.
  • Never pat anyone who is very short (or in a wheelchair) on the head or shoulder. This makes all adults – and even older teens – feel a bit demeaned. We all have a right to have our “personal body space” fully respected by others.
  • Should you decide to offer a disabled person your assistance – wait briefly to find out if they would like to accept it. For example, it’s possible you may want to help someone transfer from a wheelchair or walker to a nearby chair. However, be aware that many disabled people want to move about on their own as much as possible, to maintain their sense of independence.
  • Be sure you’re addressing the disabled person in the same manner as everyone else present. Far too often, well-meaning bosses or employers may refer to the new department head who’s disabled as “Johnny” – while calling everyone else in the room by his or her last name. Be consistent with how you refer to all who are present.
  • Don’t lean on, move, or play with a disabled person’s crutches, wheelchair or walker. You may think you’re just being lighthearted – but when you do this, you’re calling attention to the person’s disability when that person may simply want to blend in with everyone else. However, if you believe it’s a safety hazard to leave a wheelchair or other assistive device where the disabled person left it, always politely ask that person if you can move it to a different location to make it easier for everyone to walk in that area. Also, be sure to tell the disabled person that you’ll personally retrieve the device when the meeting or seminar is about to end. Finally, never lean on someone’s wheelchair for support – that often makes disabled people feel like you’re violating their personal body space – and that can make them feel very uncomfortable.
  • Be very respectful when listening to a disabled person talk who has a speech impediment. Never assume you’re helping them by suddenly announcing a “translation” or “clarification” of what was just said. Instead, if you think you and others were left a bit confused by what was stated, calmly wait until the person finishes talking and say something like, “So, if I understood you correctly, you’re asking or suggesting that we start handling this account differently in this manner” – repeating what you think you heard. If you misunderstood what was said, then give the person a chance to repeat what they said earlier – or allow them to present it to you in a different way.
  • If someone you need to speak with is in a wheelchair, respectfully pull up a chair so you can speak with that individual at eye level. This conveys both respect and equality.
  • Never assume that all hearing-impaired people can read lips. Should you need to gain the attention of a hearing-impaired person who is looking off in a different direction, very lightly tap the person on his/her shoulder to gain their attention (assuming you’re not interrupting another conversation). If you’re certain someone can lip read – stop eating, drinking or smoking – so it will be easier for that person to follow what you’re saying.
  • Try to interact naturally with the disabled. Should you accidentally say something like “Did you hear that there’s an extra meeting next week?” – only to realize you said that to someone who is hearing impaired, forgive yourself. You can then point to a flyer about the meeting or write the information down on a piece of paper and hand it to the disabled person.

Always remember to stay calm and polite, even if you’re finding it hard to communicate with the disabled worker – and realize that the situation may be far more frustrating for that individual. If you’ll be speaking with one or more disabled people during a meeting, try to let them know, in advance (through a medium they can easily access like email), that you’ll be supplying everyone with a complete summary of the meeting’s highlights in a follow-up email.

If one or more workers are sight-impaired and read Braille, let them know that you’ll get a copy of the meeting notes to them in that format (if you have that capability) within one to two business days. Also, tell them that you’ll be happy to answer any questions they may have prior to their receiving their copy of that summary. Finally, whenever possible, use such terms as “hearing impaired” instead of deaf – and “sight impaired” in the place of blind.

Please feel free to get in touch with one of our Murray Lobb attorneys so we can provide you with any guidance you may need when relating to your disabled employees. We’re also available to provide you with legal advice concerning many other general business, estate planning or employment law topics. And we can draft a wide variety of legal documents on your behalf or help you revise an outdated employee handbook.

Is Your Business Honoring All Federally Protected Employee Rights?

Most personnel managers must work hard to keep up with all the federally guaranteed rights owed to employees and job applicants. And when small companies aren’t required to do the same, they should still try to offer all the legal rights referenced below since every office runs more smoothly when employees are treated with respect and granted as many rights as possible. Employers must also be sure they’re upholding all state employment laws that are often more favorable to employees.

Although many federal laws govern various employee rights, there are five specific ones that set the core standards involving discrimination — and provide fairness when addressing worker hours, wages and time off to handle urgent medical needs. All business supervisors and managers can benefit from reviewing the following brief summaries of Title VII, The Age Discrimination in Employment Act (ADEA), the Americans with Disabilities Act (ADA), the Fair Labor Standards Act (FLSA) and the Family and Medical Leave Act (FMLA).

Basic employment standards established by Title VII

Businesses with 15 or more employees must abide by the full provisions of this law. While some might assume that employers with fewer than 15 employees can openly discriminate, lawyers frequently point out that other federal statutes (42 USC Sections 1981 and 1983) still protect ethnic and racial minorities against discrimination. These statutes govern the formation of contracts — and hiring employees always involves some type of oral or written contract.

Title VII strictly forbids all employers from discriminating against anyone regarding all

possible terms and conditions of employment. Therefore, employers cannot discriminate when handling any of the following activities.

  • Recruiting and hiring
  • Training and assigning work
  • Evaluating or measuring work performance
  • Disciplining
  • Promoting and transferring
  • Providing all promised benefits – including those owed after employment ends
  • Discharging

If your office has any questions about these standards, it’s best to contact your Houston employment law attorney to discuss your specific concerns in greater detail.

Employee rights guaranteed by the ADEA

While it may seem like a non-existent problem to younger workers, discrimination against older employees often incurs in many workplaces, especially when workers are nearing retirement when added benefits will likely vest. The Age Discrimination in Employment Act is designed to protect all employees age 40 and older when they work for an employer with at least 20 total employees.

All the basic employer activities listed above (regarding Title VII) must be applied fairly to older workers. Stated differently, the federal government forbids treating younger workers in a preferred manner over older workers who often have both strong skills and highly valuable years of experience.

Rights guaranteed under the ADA to the disabled

When a job applicant or hired employee can demonstrate his or her ability to handle all required job functions – without or without reasonable accommodations – discrimination is strictly forbidden. The ADA defines a disability as a physical or mental impairment that substantially limits any of a person’s major life functions or activities.

Reasonable accommodations should be offered to help the disabled person fully perform all required tasks, unless such adjustments would result in a fundamental alteration or change in meeting the employer’s program needs.

While the ADA has helped many workers, there’s still a need for greater societal change since many employers who can see a job applicant’s disabilities will privately opt to only hire those who don’t appear to have any cognitive or mobility issues.

Rights provided by the FLSA to all employees

The federal government has used the Fair Labor Standards Act to establish basic standards governing worker hours, minimum rates of pay and the handling of overtime hours. However, state law can offer more favorable rights, including a higher minimum wage.

Individual employers often choose to designate workers as either at-will employees who can be dismissed without cause or contract employees who must be provided with just reasons for their dismissal. The U. S. Department of Labor (DOL) states that if a company is a covered “enterprise,” and its workers are not exempt (or contract employees), the company must comply with all the FLSA provisions. Since determining what constitutes an “enterprise” isn’t always straightforward, you may need the help of your employment law attorney to interpret this for you. However, the DOL states that even if a company doesn’t qualify as a covered enterprise, all of its employees may still be protected by the FLSA provisions if their assigned tasks meet “interstate commerce” requirements.

Worker privileges available under the Family Medical Leave Act

This legislation applies to private employers with 50 or more employees working within 75 miles of the employer’s main worksite. To qualify for the extended leave provided under the FMLA, workers must have been employed by the company for at least twelve (12) months prior to making a request — and meet other specific criteria set forth under the law. Employees are supposed to be reinstated to their past jobs (or very similar ones) upon returning.

The FMLA is often used by a worker to care for a very ill, immediate family member or when the covered employee is personally battling a serious medical condition. Great care must be exercised when any worker states that s/he is not yet physically able to return once the full amount of leave allowed has been used (to avoid running afoul of provisions of state disability laws and the ADA.)

If you have any questions regarding how your office should apply any state or federal laws to employee issues, please don’t hesitate to call one of our Murray Lobb attorneys. We can also provide you with legal advice as to how some of these laws may have been recently modified by new Texas statutes.

Q & A: Job Accomodations Often Requested by Disabled Workers

Like most Americans, people living with chronic disabilities know that their best physical and mental health is often easiest to maintain when they’re doing meaningful work. Yet despite their strong work ethic – many of the disabled must still combat negative stereotypes that often don’t match the excellent work they do.

Fortunately, the Americans with Disabilities Act of 1990 (ADA) made it illegal for employers to discriminate against job applicants with known disabilities. The ADA applies to all employers with 15 or more employees and to all state and local government employers. The Equal Employment Opportunity Commission (EEOC) enforces all the provisions of the ADA.

Once employers become aware of the untapped talents and skills of the disabled, they still hesitate to hire people because they’re concerned about the “reasonable accommodations” they may need to make to help disabled workers function at their full capacity. However, most of the time, the special requests made by the disabled are relatively simple to handle.

Here’s a brief look at some of the questions employers often ask about properly honoring all the ADA’s provisions in the workplace.

Frequently asked questions concerning the Americans with Disabilities Act

Q:  What exactly constitutes a “disability” under this law?

A:  A job applicant’s disability is normally covered by the ADA if it involves a mental or physical impairment that substantially interferes with (or limits) an individual’s ability to handle a major activity like work.

Q:  Can my company require a job applicant to undergo a medical exam before extending a job offer?

A:  Generally, no. However, you can make a job offer that’s conditional, based on a satisfactory result of a post-offer medical exam (or inquiry) that’s required of all new employees entering in the same job category. Under certain circumstances, always best discussed in advance with your Houston employment law attorney, you can ask an applicant who has disclosed that s/he has a disability to either demonstrate the ability to perform the job’s required tasks – or at least describe how s/he will handle them due to the disability.

Q:  What constitutes a “reasonable accommodation?”

A:   Employers sometimes need to adjust or modify certain aspects of the job application process and how a job is performed so that a disabled person can readily enjoy the same rights and privileges extended to others without disabilities.

Q:  Do we have to grant preference to a disabled applicant over someone who is not disabled?

A:  No. One of the clearest examples provided by one source refers to a job where the employees may need to type rather fast. If the disabled job applicant’s best typing score (after being provided with appropriate testing accommodations) is only 50 wpm and a non-disabled applicant can type 75 wpm, the employer is completely free to hire the faster typist. Again, this holds true if fast typing skills are crucial to the job;

Q:  Can you provide concrete examples of reasonable accommodations that employers might need to provide?

A:  Yes. A sample list follows.

  1. You may need to modify how someone takes a qualifying exam, completes a training program or handles limited aspects of the job once hired. For example, a person with limited use of his hands may require special software that lets him dictate most of his work instead of typing it;
  2. You may have to honor certain lifting limitations or a requirement that someone remain seated in a regular chair most of the day. Depending on the disabled person’s special needs, particularly if she’s suffering from a spinal cord injury, you may need to provide an ergonomically correct chair. Of course, employers can object to some requests, if they can prove that purchasing the required equipment would likely impose an undue hardship on them;
  3. It may be necessary to allow a disabled person to work from home. Some disabled people need to work in either extremely high- or low-light environments. Others may need to telecommute so they can readily take certain medications — or periodically change, adjust or empty various medical devices they must wear. Still other employees may need to lie down and periodically rest their bodies due to various spinal cord or traumatic brain injuries that make sitting upright for lengthy periods of time too compromising or painful.

Please note that regardless of whether the disabled employee works at home or in a company’s office, no employer is required to lower their standards for the quality of work being done – nor lower their overall production standards;

  1. It may help to change an employee’s work schedule. This can help the disabled person perform the required tasks at a time of day or night that may be much more conducive for doing his/her best work;
  2. You may need to make special scheduling adjustments to help an employee with a known psychiatric or mental health impairment. This might include excusing the person from working rotating shifts; allowing the individual to take extra time to rest during the lunch hour — and making sure the employee has a work schedule that allows for regular therapy appointments during the day;
  3. It may be necessary to provide a TTY (text telephone) system to a worker who has suffered a significant hearing loss that’s been formally recognized as a disability;
  4. You may need to authorize a short-term leave from the job. This type of disability request will always revolve around special circumstances. For example, if a worker and his/her doctor both believe that such a leave is necessary to help improve the person’s health and ability to work, this might be useful. However, employers are not required to bear undue hardships and disrupt overall workflow by leaving critical positions unfilled for lengthy periods of time.

As all this material indicates, meeting ADA standards is usually a straightforward process. Odds are, you’ll soon discover that hiring disabled employees is a smart move since they’re normally highly qualified and eager to succeed.

Please feel free to contact one of our Murray Lobb attorneys so we can assist you as you try to conform with all the ADA’s provisions – while also creating a pleasant job atmosphere for all your employees.