Any operator of a large vehicle fleet must place a premium on driver safety. Atlanta-based United Parcel Service, Inc., which operates one of the world's largest commercial vehicle fleets, is no exception. With more than 65,000 vehicles on the road each day, one of the company's greatest potential liabilities arises from traffic accidents involving UPS trucks.

Accordingly, managers thought they were protecting the company when they implemented a policy requiring all applicants for driver positions to meet the Department of Transportation (DOT) hearing standards for drivers of the largest class of commercial vehicles. The company based its policy on three studies that showed deaf drivers were, as a general rule, more susceptible to traffic accidents than their hearing counterparts. But while the policy may have reduced the risk of traffic accidents involving deaf drivers, it exposed the company to another type of risk — legal liability for violating the Americans with Disabilities Act (ADA).

In 1999, a group of 1,000 deaf or hearing-impaired UPS employees sued the company, arguing that the company's blanket prohibition on hiring them for driver positions illegally prevented them from advancing their careers at the company and violated their rights under the ADA. After seven years of litigation, a California federal court ruled in the employees' favor, finding that the UPS policy violated the law. The court ruled UPS could no longer enforce its policy and ordered the company to pay the plaintiffs $5.8 million.

Although the case was recently reheard by the 9th Circuit Court of Appeals and sent back to the lower court for further proceedings, Bates vs. UPS highlights the difficult situation fleet managers face when trying to balance their need to hire safe drivers with their legal obligations under the ADA.

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Protecting Workers

Congress enacted the ADA in 1990 to, among other things, prevent employment discrimination against individuals with disabilities who are otherwise able to perform the essential functions of a job with or without "reasonable accommodations" from the employer.

The Act makes it unlawful for any employer of 15 or more people to discriminate "against qualified individuals with disabilities in job application procedures, hiring, firing, advancement, compensation, job training, and other terms, conditions, and privileges of employment."

Courts have specifically found that employers violate the Act when they conduct pre-job offer medical screenings, specifically ask an applicant questions about whether he or she has a disabling condition, or automatically screen out people with disabilities by applying an employment test or qualification standard not directly related to an essential job function. However, employers may always require employees to maintain the appropriate licenses for the desired position and meet any state or federally mandated standards. In addition, companies do not need to lower their safety standards to accommodate disabled individuals.

In Bates vs. UPS, the court found that the UPS general policy against hiring deaf drivers violated the Act because it didn't allow for an individual assessment of each driver's ability to safely operate a vehicle with accommodations such as extra mirrors and other visual aids. Further, the court found that although the hearing standard UPS applied was mandated by the DOT for drivers of trucks heavier than 10,000 lbs., UPS violated the ADA when it applied that test to drivers for all vehicles in the absence of a clear showing that hearing-impaired individuals were any less capable of safely driving smaller vehicles.

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Accommodating Disabilities

The deaf driver situation UPS faced is not the only circumstance under which a fleet operator might have a duty to consider the Americans with Disabilities Act. 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."

 This means employers must consider accommodating individuals with a wide variety of physical or psychological impairments. A person with a back injury who requires special seat padding or back support, a diabetic who needs more frequent breaks during the day to take insulin, and a person who has arthritis and needs an extra step to get into and out of a vehicle may all be covered under the Act.

When considering whether to accommodate such individuals, employers must carefully weigh their legitimate business needs and the employee's ability to meet those needs. An employer does not need to create a new job description to accommodate a disabled individual, but may be required to modify aspects of the job — especially if certain duties are ancillary to the core job functions. For instance, if drivers at a certain company generally work four hours before getting a 15-minute break, it may be a reasonable accommodation to give a driver with diabetes a 10-minute break every two hours. Mere inconvenience or a small expense to the employer is not enough "undue hardship" on the company to bring the employee outside the law's protection.

While employers do not have to honor employee demands for accommodations that are unreasonable or too burdensome, they are obligated to try to reach a compromise that will meet the employee needs. For instance, if an employee with back problems suggests to the owner of a small company that it purchase and install an eight-way adjustable power seat for him, the employer should explore whether alternative measures such as more frequent breaks or ergonomic, vibration-reducing seat cushions might accomplish the same goal of making it more comfortable for him to drive.

It's essential for the employer to communicate with the employee and assess each individual's situation. An employee with a disability should only be terminated if it is impossible for him or her to perform the essential functions of the job with reasonable accommodations, taking into account the employer's size and resources.

Circumstances in which the employer wants to verify the extent and seriousness of the employee's medical condition must be handled carefully. An employer may not require applicants to undergo medical examinations or ask questions about disabilities before extending a job offer. Nor may an employer ask the applicant's doctor. However, after making a job offer, an employer may ask disability-related questions and perform medical examinations, and may condition the job offer on the results of these inquiries, as long as all employees in the same job classification are subject to the same examination or inquiry.

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Complying with 'Reasonable'

It's essential to remember that the ADA only requires employers to offer disabled individuals reasonable accommodations. That means if a requested accommodation would either be unduly financially burdensome to the employer or would not enable the employee to perform the necessary job tasks, the employer does not have to grant it.

If it's truly essential for drivers to communicate with customers, for example, simply providing extra mirrors to a deaf driver to ensure she is able to drive safely still does not qualify that person for the job if she is unable to speak with customers. Likewise, a requested accommodation that imposes a heavy burden on the employer — such as a redesigned or specially-built truck — would not be considered a reasonable accommodation either.

Thus, it's important to have clear job descriptions that accurately describe the duties and capabilities of the job. Whenever a job qualification standard, such as ability to hear, tends to screen out people with disabilities, the onus is on the employer to demonstrate how that qualification is job-related and consistent with a business necessity.

Fortunately, courts have recognized that regular attendance is an "essential function" of all jobs, and the Equal Employment Opportunity Commission, which enforces the ADA, points out in its compliance guidelines that "an employer is not required to lower quality or production standards to make an accommodation."

The key to complying with the ADA is engaging in an interactive discussion with the employee to determine the accommodations that would enable them to perform the essential functions of the job. Employers get in trouble when their policies exclude disabled people on the basis of a disability without considering what modifications might help in each individual case. Liability often rests not on the employers' inability to accommodate an employee, but rather on its unwillingness to find out whether it can.

 

 

 

About the Author

Richard D. Alaniz is senior partner at Alaniz and Schraeder, a national labor and employment firm based in Houston. He can be reached at (281) 833-2200 or ralaniz@alaniz-schraeder.com.

 

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