The facts:

The case centered around a dog that a disabled employee needed to perform her daily tasks. The employee suffered from a permanent leg injury and had trouble navigating through certain areas. The dog provided assistance with that impairment, as well as an unrelated psychological disorder the employee also suffered from. The company allowed the employee to bring the dog to work.

The problem? She complained that the dog was falling on the slippery tiled surfaces in the office. She requested that her employer put non-skid surfaces down to protect her dog. When her company did not comply, she tried alternative solutions, such as having the dog practice walking on tile floors, and even getting dog booties to help with its grip. Nonetheless, the dog continued to fall on the slippery surface.

The employer said:

The employee sued the company, saying it had violated the Americans with Disabilities Act by failing to accommodate her disability. But her employer countered that while it would accommodate her disability, it had no duty to accommodate her service animal.

Who won the case?

Answer: The employee

Why: The court ruled that any accommodation made to assist an employee’s service device helps the employee, not the device. In other words, “When an employer (provides a ramp for a wheelchair), it is an accommodation to the employee using the wheelchair, not the wheelchair itself.” Similarly, making accommodations for a service animal is the same as assisting its disabled owner.

Employers are on the hook to honor — as reasonably as possible — requests for accommodation from disabled workers, including those regarding their service animals.

Cite: McDonald v. Dept. of Environmental Quality

How can they find the right balance? What interview topics are off-limits?

Here are answers to three questions hiring managers have about interviewing disabled applicants:

1. Can we use a test to see if an interviewee can handle a necessary physical function — for example, heavy lifting?

Yes, those tests are OK. But only if you test every applicant, and not just those who appear disabled.

2. After describing the job’s requirements, can we ask applicants if they know of anything that would prevent them from performing those duties?

Yes, but again: You need to ask every applicant that question.

3. Can we ask if a disability is likely to get worse and interfere with performance in the future?

No — this type of question is akin to asking for a diagnosis or other medical information, which is prohibited under the Americans with Disabilities Act.

Most of the problematic phrases refer to bodily positions or physical actions that a disabled person may not be able to perform — even if they can still do the job effectively.

Here are some of the most common phrases that should be avoided, and a safer alternative:

• “stand” or “sit” — use “remain stationary” instead
• “walk” — say “move”
• “climb” — replace with “ascend and descend”
• “talk” or “hear” — just say “communicate”
• “stoop” or “kneel” — say “position self to … “

Another key to non-discriminatory job descriptions: Omit physical demands that aren’t essential to job performance.

Many companies run into trouble with the Americans with Disabilities Act when they ask job applicants and new employees for medical information. Here’s are six keys to staying out of court:

• Give the tests to all new hires for similarly situated positions
• Only ask for a physical after a job offer has been made
• In your written offers, mention they are contingent on successful completion of a medical exam
• Make sure the results are confidential
• Only test to make sure the employees can perform the essential functions of the job, and
• Put those requirements in your job description so applicants are aware of them beforehand.

As if hiring the right talent wasn’t tough enough, the Americans with Disabilities Act makes every step of the hiring process more difficult – from collecting applications and interviewing candidates to getting a new hire ready to start the job. Here are the most common pitfalls that trip up companies and how HR can help avoid them.

Last week, the EEOC released a question-and-answer guideline on disability hiring. Though directed at federal employers, the document contains plenty of information that applies to all companies.

Here are the answers to HR’s common questions:

1. What are the most common types of accommodations companies give applicants and newly hired employees?

Here are the top examples from the EEOC:

• making application and testing materials accessible in different formats (for example, making recruiting sites compatible with screen-reader software for the blind)
• altering facilities and work areas
• giving other employees responsibility for marginal tasks an employee can’t perform (as long he or she can handle the job’s essential functions), and
• changing the job’s schedule, if possible.

2. How do companies know if an accommodation will cause an “undue hardship?”

There’s no easy answer — figuring out which accommodations are reasonable is a case-specific question. The two most important factors to consider:

• cost (taking the company’s budget into account), and
• impact on other employees’ abilities to do their jobs.

For outside opinions and recommendations, the EEOC recommends contacting the Job Accommodation Network (www.jan.wvu.edu).

3. What if we think an applicant could pose a safety risk?

Again, determining whether a disabled applicant can perform the job safely requires an individualized assessment. Here are the things employers should take into account:

• the duration of the risk
• the nature and severity of the potential harm
• the likelihood that the potential harm will occur, and
• the imminence of the potential harm.

In other words, the EEOC says, “a slightly increased, moderate, speculative, or remote risk of harm” isn’t enough to deny someone a job.

Employers should consider qualified medical opinions, the person’s history performing similar work and of course, the possibility of erasing the safety risk with a reasonable accommodation.

4. Can employers give preference to disabled applicants?

Yes. Unlike other types of bias (race and gender, for example), there’s no such thing as “reverse discrimination” under the ADA. Though companies obviously want to employ the most qualified applicants, there’s nothing illegal about giving disabled candidates a preference.

Also, employers may state in job ads that they encourage qualified persons with disabilities to apply.

5. What should employers do after an applicant or new hire asks about accommodations?

Once HR or a manager knows someone needs an accommodation due to a medical condition, it’s time to start the “interactive process” to find out if any change is necessary and possible. Here are the EEOC’s keys for staying compliant and finding the best solution:

• Get specific — It’s important to get as much information about the specific limitations as possible.
• Ask for suggestions — The process is defined as “interactive” for a reason. The employee or applicant may know from past experiences what some possible accommodations are. (Note: The EEOC recommends giving priority to the employee’s preference, but companies aren’t required to do so if there’s a better solution.)
• Keep looking for alternatives — If a suggested solution isn’t reasonable, your obligations don’t end there. Companies need to exhaust all possible alternatives before deciding there’s no accommodation available.

In one case, an airline offered jobs to a group of applicants, contingent on successful completion of a background check and medical exam.

The exam revealed a few of them weren’t eligible for hire, and their offers were taken back.

The problem: The medical testing was done before the background check. The applicants sued, claiming the company violated the ADA by not saving the exam for last.

The court agreed, ruling the law requires medical tests to be the “only remaining contingency” in the hiring process.

According the EEOC, employers must obtain and analyze “all relevant non-medical information” before conducting any medical investigations, unless they can prove it was impossible to get all the non-medical info.

Cite: Leonel v. American Airlines, Inc.