Law Watch

February, 2005

Intellectually disabled individuals may be entitled to reasonable accommodation, according to the Equal Employment Opportunity Commission (EEOC). Recent EEOC guidance explains that individuals are intellectually disabled if they have:

1) an IQ below 75
2) significant limitations in basic skills needed for everyday life
3) limitations that began before age 18

These individuals are entitled to reasonable accommodation, if their intellectual disability substantially limits them in one or more major life activities.

Major life activities are activities that average persons can perform with little or no difficulty. These activities include walking, seeing, hearing, thinking, speaking, learning, concentrating, performing manual tasks, caring for oneself and working. According to the EEOC, someone who requires frequent assistance cleaning an apartment, grocery shopping, getting to doctors’ appointments and cooking, and cannot read at a level higher than the third grade would be substantially limited in caring for himself, and entitled to reasonable accommodation.

Reasonable accommodation may include: (a) altering an interview so a candidate can show skills he cannot describe; (b) interpreting an application so the individual can understand it; (c) reallocating nonessential functions to others; (d) providing additional time or guidance for learning; (e) letting job coaches provide monitoring, training and support; encourage appropriate social interaction or help determine reasonable accommodations; (f) modifying workstation placement to increase concentration; and/or (g) allowing another person to attend a job evaluation or disciplinary meeting. Labeling shelves and containers when an intellectually disabled person forgets where to stock merchandise is an example of a reasonable accommodation.

As with other disabilities covered by the Americans with Disabilities Act (ADA), employers must undertake the interactive process if employees request it or if they have reason to know that employees cannot do so. The duty to accommodate is ongoing. An employer may ask an employee whose performance has deteriorated why this has happened, but not whether it is the result of an intellectual disability. Intellectually disabled employees may be disciplined for performance problems or misconduct as would other employees. Violence, threats of violence, stealing or property destruction need not be tolerated.

The EEOC’s guidance also covers hiring intellectually disabled individuals, requesting information about their disability, keeping medical information confidential and preventing and correcting harassment. Employers should ensure that their job descriptions include essential mental abilities needed to successfully perform job duties, review accommodation practices, ensure that antiharassment policies protect individuals with mental disabilities and provide adequate training.

Jeffrey Harris is a partner in the law firm of Torkildson Katz Fonseca Moore & Hetherington. He specializes in labor and employment law. He can be reached at 523-5393.

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Jeffrey Harris