The ADA and Collective Bargaining Issues
April 26, 2020
This brochure was written by Laurie M. Johnston, Esq., Harris, Beach & Wilcox, Ithaca, New York.
For a more extensive review of the topic see a publication entitled "The Reasonable
Accommodation Process in Unionized Environments" by Susanne M. Bruyere, Susanna Gomez, and Gwen Thayer Handelman, which will be available for purchase from your Regional Disability and Business Technical Assistance Center at 1-800-949-4232 (voice/TTY), or from LRP Publications, P.O. Box 980, Horsham, PA 19044-0980, phone 1-800-341-7874.
What is the Americans with Disabilities Act?
The Americans with Disabilities Act ("ADA"), passed in 1990, is legislation to protect and guarantee access and participation in society for persons with disabilities. The statute is specifically directed at employment, public accommodations, public services (i.e., services delivered by state and local governments), transportation and telecommunications. Title I of the ADA prohibits discrimination against qualified persons with disabilities in all terms and conditions of employment, including recruitment, pre-employment screening, hiring, benefits, promotions, layoff and termination.
Under the ADA, an employer must provide an effective reasonable accommodation when a qualified individual with a disability requests accommodation, unless the employer can demonstrate that it would be an undue hardship to do so. An employer may not deny an employment opportunity to a qualified applicant or employee with a disability because of a request or need for a reasonable accommodation.
As of July 26, 1994, Title I of the ADA applies to employers of 15 or more employees, employment agencies, labor organizations, and joint labor-management committees.
The Equal Employment Opportunity Commission ("EEOC"), the administrative enforcement agency for Title VII of the Civil Rights Act of 1964 ("Title VII") and the ADA has not yet issued any policies or guidance with respect to the ADA and collective bargaining issues. The opinions expressed here are those of the author.
What Obligations does a Union have under the ADA and the NLRA?
The employment discrimination provisions of the ADA apply to labor unions both as employers and as bargaining agents. The courts have found under Title VII (which prohibits employment discrimination based on race, sex, national origin and religion) that a union must not interfere with an employer's duty to reasonably accommodate an employee's religious observances when the accommodation does not violate the collective bargaining agreement. It is very likely that the courts will impose a similar requirement on unions under the ADA.
Federal labor law imposes a duty of fair representation on unions, that is, they must act reasonably, in a non-discriminatory fashion and in good faith, with respect to the employees they represent. This duty of fair representation may include assisting an employee in obtaining a reasonable accommodation, or cooperating with an employer in attempting to determine a reasonable accommodation within the bargaining unit and the terms of the collective bargaining agreement.
How Does the ADA Affect Unionized Employers?
Private sector employers who have unionized employees are also subject to the National Labor Relations Act ("NLRA"). The NLRA provides, among other things, that the union is the exclusive representative of the employees, and that the employer is prohibited from dealing directly with employees concerning terms and conditions of employment. Furthermore, the NLRA prohibits an employer from implementing any change in terms and conditions of employment without first negotiating that change with the union. The ADA prohibits employers from entering into collective bargaining agreements that discriminate against individuals protected by the ADA.
What is Reasonable Accommodation?
A reasonable accommodation is any modification of or adjustment to a job, an employment practice, or the work environment that makes it possible for a qualified individual with a disability to participate and enjoy equal employment opportunity.
Reasonable accommodations include modification or adjustment of the application process to enable qualified individuals with disabilities to apply, making facilities readily accessible to and usable by persons with disabilities, modifying work schedules, reassignment to a vacant position, reallocating non-essential job functions, and acquisition or modification of equipment or devices. An employer is not required to create "light duty" positions or to reallocate essential job functions.
An employer is not required to provide a reasonable accommodation if it would create an undue hardship for the employer. Whether a reasonable accommodation creates an undue hardship is a factual issue depending on factors such as the nature and net cost of the accommodation and the size and nature of the business. The terms of a collective bargaining agreement may be relevant in determining whether a particular accommodation would cause undue hardship, but they will not be determinative of that question. The duty of reasonable accommodation is situation-specific.
What is the Reasonable Accommodation Process?
In determining a reasonable accommodation under the ADA, if an effective accommodation is not obvious, the employer and employee may wish to engage in a flexible interactive process to determine an appropriate accommodation. Generally, an individual with a disability must request a reasonable accommodation. If the employer has not done so, it should determine the essential functions of the job involved, then consult with the individual requesting accommodation to determine the job-related limitations imposed by the individual's disability and how those limitations could be overcome with a reasonable accommodation. The possible accommodations should be evaluated, and an effective accommodation selected. While the employee's preference is given consideration, the employer has the discretion to chose between equally effective reasonable accommodations.
The ADA also requires that medical information concerning job applicants and employees be kept in separate files and confidential. To the extent medical information is required or used during discussions concerning reasonable accommodations, the employer has a continuing obligation to maintain the confidentiality of that information.
The reasonable accommodation process, however, may conflict with the NLRA prohibitions on direct dealing and unilateral changes to terms and conditions of employment. Furthermore, unlike Title VII, the ADA does not contain an exception for collectively bargained seniority systems. Most likely, therefore, an employer can not automatically reject a requested accommodation that conflicts with or affects the terms of a collective bargaining agreement, such as request for a light duty job without the requisite seniority or a request for job restructuring, but must show that the accommodation would be an undue hardship, that is, unduly disruptive to other employees or to the functioning of the employer's business.
Is An Employer Required to Meet its Obligations under the ADA and the NLRA?
Yes, the legislative history of the ADA shows that Congress considered the unique problems created by collective bargaining agreements and intended that the provisions of an agreement be dovetailed with the duty of reasonable accommodation under the ADA. Similarly, the General Counsel for the National Labor Relations Board ("NLRB"), the government agency charged with the enforcement of the NLRA, has stated that to the extent that a reasonable accommodation 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 does not have to negotiate with the union representing its employees. The union, however, must be part of the process of determining a reasonable accommodation where the reasonable accommodation would cause a material, substantial or significant change in working conditions.
It is both possible and desirable to reconcile the ADA and the NLRA. The best way is to ensure that full communication exists at all points in the ADA dialogue process. Effective achievement of ADA objectives requires harmonizing two statutory schemes that have the needs of workers at their core.
What Proactive Approaches are Available to Employers and Unions to Meet the Requirements of the ADA and the NLRA?
The potential conflicts between the ADA and the NLRA may be lessened or eliminated through collaborative long-range planning by unions and employers, and, thereby, protecting the interests of unions and all their members under the terms of a collective bargaining agreement as well as statutory mandates.
Employers and unions can create a cooperative environment with respect to their obligations under the ADA and NLRA. At the outset, the employer and union could decide to utilize informal accommodations for persons with disabilities within the unit. For instance, if a person with a disability had difficulty performing a non-essential function of the job, for example, an employee in a wheelchair who couldn't reach the copying machine, an accommodation, with the approval of the union and the employees affected, might be made to have other employees do that employee's copying. Employers and unions might also present educational programs on the ADA, including open discussions on the effects of the ADA on the work environment by both management and union personnel.
Employers and unions might also decide to establish a committee of an equal number of management and union representatives to deal with ADA compliance issues. This joint labor management committee might consider requests for reasonable accommodations, and work with the employee in the informal, interactive process of determining a reasonable accommodation. Since both the employer and union would be represented in this committee, their interests could be asserted and protected in the process. Furthermore, in the course of the committee_s work, it could develop factors for evaluating a requested accommodation, assist in the determination of the essential functions of the job, determine the accommodations available, evaluate whether the requested accommodation would affect other members of the bargaining unit, how it would affect them, whether other possible accommodations are available, and the possible consequences of those accommodations.
As noted above, generally, employers have an obligation to keep employee medical information confidential. To the extent, that medical information is needed in the determination of a reasonable accommodation, and most likely it will not, the information could be provided by the employee or by the employee authorizing the employer to release the medical information to the committee.
What Role Can the Shop Steward Play in Assisting in Implementation of the ADA?
The union steward 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 whom members generally see everyday on the job. The shop steward can serve a role in information dissemination on the ADA. It is at this level that information about the ADA can be shared with union membership on such topics as the union's role in informing the workforce about non-discrimination of persons with disabilities in the workplace and the reasonable accommodation process.
These proactive approaches will serve the employer with respect to its obligations under the ADA, to provide reasonable accommodations, and under the NLRA, to include the union in the process of determining a reasonable accommodation. A union will also benefit by these proactive approaches with respect to its legal obligations to the employees it represents. Most of all, these proactive approaches will foster positive and productive working environments for employers and unions, and further the goal of the ADA, the inclusion of persons with disabilities in the work place and society.
ADA Regional Disability and Business Technical Assistance Center Hotline, 800/949-4232 (voice/TTY).
Equal Employment Opportunity Commission, 1801 L Street, N.W., Washington, D.C. 20507, (800) 669-4000 (Voice) to reach EEOC field offices; for publications call (800) 800-3302 or (800) 669-EEOC (voice/TTY).
American Federation of Labor and Congress of Industrial Organizations (AFL-CIO), Civil Rights Department, 815-16th Streets, N.W., Washington, D.C. 20006, (202) 637-5000 (Voice).
This material was produced by the Program on Employment and Disability, School of Industrial and Labor Relations - Extension Division, Cornell University, and funded by a grant from the National Institute on Disability and Rehabilitation Research (grant #H133D10155). It has been reviewed for accuracy by the U.S. Equal Employment Opportunity Commission. However, opinions about the Americans with Disabilities Act (ADA) expressed in this material are those of the author, and do not necessarily reflect the viewpoint of the Equal Employment Opportunity Commission or the publisher. The Commission's interpretations of the ADA are reflected in its ADA regulations (29 CFR Part 1630) and its Technical Assistance Manual for Title I of the Act.
Cornell University is authorized by the National Institute on Disability and Rehabilitation Research (NIDRR) to provide information, materials, and technical assistance to individuals and entities that are covered by the Americans with Disabilities Act (ADA). However, you should be aware that NIDRR is not responsible for enforcement of the ADA. The information, materials, and/or technical assistance are intended solely as informal guidance, and are neither a determination of your legal rights or responsibilities under the Act, nor binding on any agency with enforcement responsibility under the ADA.
In addition to serving as a National Materials Development Project on the Employment Provisions of the Americans with Disabilities Act of 1990, the Program on Employment and Disability also serves as the training division of the Northeast Disability and Business Technical Assistance Center. This publication is one of a series edited by Susanne M. Bruyere, Ph.D., C.R.C., Director of the ILR Program on Employment and Disability at Cornell University.
Other Titles in this Implementing the ADA Series-
- A Human Resource Perspective on Implementing the ADA
- Reasonable Accommodation Under the ADA
- Pre-Employment Screening and the ADA
- Pre-Employment Testing and the ADA
- Health Benefits Plans and the ADA
- The Implications of the ADA for Personnel Training
- The ADA and Collective Bargaining Issues
- The ADA and Injured Workers
- Attitudes Toward the Employment of Persons with Disabilities
- Total Quality Management Applied to the Implementation of the ADA
For further information about publications such as these, contact the ILR Program on Employment and Disability, Cornell University, 102 ILR Extension, Ithaca, New York 14853-3901; or at 607/255-2906 (Voice), 607/255-2891 (TDD), or 607/255-2763 (Fax).