Collective Bargaining and the

The Americans with Disabilities Act of 1990

Congress passed the Americans with Disabilities Act of 1990 (ADA) to protect disabled workers from unfair discrimination on the basis of their disabilities. Under the ADA, employer may not make adverse employment decisions against disabled workers who are able to perform the essential functions of a job with reasonable accommodation. Only if the employer shows that making the reasonable accommodation would constitute an undue hardship can the employer escape ADA liability.

The National Labor Relations Act of 1935

The National Labor Relations Act of 1935 (NLRA) was passed to ensure that workers had the right to collectively bargain or negotiate their pay and working conditions through a common representative. The NLRA, as amended in 1947, details the rights of labor unions, employees, and employers in the collective bargaining process.

Potential Conflicts between the ADA and the NLRA Bargaining Agreements

The NLRA and the ADA each guarantee certain rights to American employees. Sometimes these rights conflict. Consequently, the National Labor Relations Board (NLRB), the agency tasked with enforcing the NLRA, and the Equal Employment Opportunity Commission (EEOC), the agency responsible for administering the ADA, have entered into agreements with respect to the interaction of the two laws.

Example of Conflict between the ADA and the NLRA: The ADA requires that an employer reasonably accommodate a physically disabled employee by assigning him to light duty work. The collective bargaining agreement under which the employee is governed, however, requires that light duty work be assigned by seniority only. The disabled employee does not have sufficient seniority to be eligible under the collective bargaining agreement for light duty work.

Reasonable Accommodation and Undue Hardship Analysis

As stated above, the ADA requires employers to provide reasonable accommodations to disabled employees where those accommodations would allow the employees to perform the essential functions of their jobs. Reasonable accommodations may include small changes to the job, including, for example, any of the following:

• Ensuring that facilities are accessible to disabled employees;
• Implementing a part-time or modified work schedule;
• Reassigning a disabled employee to a vacant position or to light duty work;
• Acquiring or modifying existing equipment;
• Adjusting examinations, training materials, or policies; and
• Providing qualified readers or interpreters.

If such accommodations would constitute an undue hardship, however, they need not be provided. In general, courts will find an undue hardship if reasonable accommodations would require the employer to incur significant difficulty or expense. In making such a determination, courts consider, among other factors, the size and financial resources of the employer.

Where a collective bargaining agreement is in existence, the EEOC and courts will also take into consideration the provisions of that agreement. The EEOC has stated its policy to be that while the existence of a conflicting provision in a collective bargaining agreement does not by itself create an undue hardship, it should be taken into consideration in the analysis. The inquiry is the extent to which the accommodation would be unduly disruptive to other employees or to the functioning of the employer's business. If breaching the collective bargaining agreement provision would not be unduly disruptive to the other employees or to the functioning of the employer's business, an undue hardship will not be found.

Copyright 2008 LexisNexis, a division of Reed Elsevier Inc.