This brochure on collective bargaining and the American with Disabilities Act (ADA) is one of a series on human resources practices and workplace accommodations for persons with disabilities edited by Susanne M. Bruyère, Ph.D., CRC, SPHR,  Director, Program on Employment and Disability, School of Industrial and Labor Relations – Extension Division, Cornell University

Johnson, Laurie M.

Reiter, Elizabeth

English

This material was produced by the Employment and Disability Institute in the Cornell University ILR School. Development of the original brochure series was funded by a grant from the National Institute on Disability and Rehabilitation Research (NIDRR) (grant #H133D10155). Content updates were funded by NIDRR grant number H133 A110020. However, those contents do not necessarily represent the policy of the Department of Education, and you should not assume endorsement by the Federal Government.This brochure on collective bargaining and the American with Disabilities Act (ADA) is one of a series on human resources practices and workplace accommodations for persons with disabilities edited by Susanne M. Bruyère, Ph.D., CRC, SPHR,  Director, Program on Employment and Disability, School of Industrial and Labor Relations – Extension Division, Cornell University.A80_PDF.pdf: 2534 downloads, before Oct. 1, 2020

eCommons (Cornell Univ.)

The ADA and Collective Bargaining Issues

DigitalCommons@ILR

	 W W W . H R T I P S . O R G 	 1A D V A N C I N G 	 T H E 	 W O R L D 	 O F 	 W O R K w w w . h r t i p s . o r g
What is the Americans with Disabilities Act?
The purpose of the Americans with Disabilities Act (ADA) is to protect and guar-
antee access and participation for persons with disabilities in employment, pub-
lic accommodations, public services, transportation, and telecommunications.  
Title I of the ADA prohibits discrimination against qualified individuals with 
disabilities in all terms and conditions of employment, including recruitment, 
pre-employment screening, hiring, benefits, promotions, layoff and termination.  
Employers of 15 or more employees are subject to Title I of the ADA, as are labor 
organizations, employment agencies, and joint labor-management committees.
Under the ADA, an individual with a disability is 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 impair-
ment. Courts determine whether an individual is substantially limited in per-
forming a major life activity by comparing the performance of the person in 
question to that of most people in the general population.  The impairment need 
not prevent or severely limit an individual’s major life activity in order to be con-
sidered “substantially” limiting.  Also, the fact that an individual uses mitigating 
measures (such as medication or equipment, for example) to minimize the effects 
of the impairment has absolutely no bearing upon whether it substantially limits 
a major life activity.  
The ADA and 
Collective Bargaining 
Issues
2 	 The	ADA	and	Collective	Bargaining	Issues
Under the ADA, an employer may not deny 
anyone the opportunity to apply for a job be-
cause of a request to reasonably accommodate 
his or her disability during the application 
process, nor may an employer deny an em-
ployment opportunity to a qualified employee 
with a disability because he or she needs a rea-
sonable accommodation in order to perform 
the job’s essential functions.  An employer is 
not required to provide any accommodation 
that would impose an undue hardship on it, 
however.
How does the ADA affect Unionized 
Employers?
Private sector employers whose employees 
are represented by a union are subject to both 
the ADA and the National Labor Relations Act 
(NLRA).  Under the NLRA, the union is the 
exclusive representative of the employees, and 
an employer is prohibited from dealing direct-
ly with employees concerning the terms and 
conditions of employment.  Furthermore, the 
NLRA prohibits an employer from implement-
ing any change in the terms and conditions 
of employment without offering the union 
an opportunity to bargain over the proposed 
changes.
The ADA prohibits employers and unions 
from entering into collective bargaining agree-
ments that discriminate against individuals 
protected by the ADA.
What Obligations does a Union have 
under the ADA and the NLRA?
The employment discrimination provisions of 
the ADA apply to unions as employers and as 
bargaining agents.  Under the NLRA, a union 
has a duty of fair representation; that is, the 
union must act reasonably, in a non-discrimi-
natory fashion, and in good faith with respect 
to the employees it represents.  This duty 
might require the union to assist an employee 
in requesting a reasonable accommodation 
and in working with the employer to deter-
mine the reasonable accommodations avail-
able to that employee.
What is a “Reasonable 
Accommodation” under the ADA?
A reasonable accommodation is any modi-
fication or adjustment to a job, employment 
practice, or work environment that makes it 
possible for a qualified individual with a dis-
ability to participate and to enjoy an equal em-
ployment opportunity.  The primary purpose 
of a reasonable accommodation is to enable a 
qualified individual with a disability to per-
form the essential functions of the position.
Reasonable accommodations include the 
modification or adjustment of the application 
process to enable qualified individuals with 
disabilities to apply, making facilities read-
ily accessible to and usable by persons with 
disabilities, modifying work schedules, reas-
signing a person with a disability to a vacant 
position, re-locating non-essential job func-
tions, and acquiring or modifying equipment 
or devices. An employer is not required to cre-
ate “light duty” positions, and the reallocation 
of essential job functions is not a reasonable 
accommodation.
Furthermore, an employer is not required to 
provide an accommodation if it would create 
an undue hardship for the employer.  Whether 
a reasonable accommodation creates an un-
due hardship is a factual issue that depends 
upon factors such as the type of accommoda-
tion, its cost, and the size and nature of the 
business.  The employer should consider the 
terms of a collective bargaining agreement in 
determining whether a particular accommoda-
tion would cause undue hardship.  However, 
an employer cannot assert that a requested 
	 W W W . H R T I P S . O R G 	 3
accommodation presents an undue hardship 
merely because the employer is party to a col-
lective bargaining agreement.
What is the Reasonable 
Accommodation Process?
Under the ADA, the individual with a disabil-
ity and the employer engage in an interactive 
process to determine whether a reasonable ac-
commodation exists.  Once the individual with 
a disability requests an accommodation and 
the employer determines the essential func-
tions of the position at issue, the parties must 
then determine what limitation(s) the individ-
ual’s disability impose on the job.  The parties 
evaluate accommodations that would allow 
the individual to overcome job limitations and 
then select an effective and reasonable accom-
modation, if available.  While the employee’s 
preference is considered, the employer has the 
discretion to choose between equally effective 
reasonable accommodations.
The individual with a disability may disclose 
medical information to the employer during 
the reasonable accommodation process.  The 
ADA requires that employers keep medical 
information concerning job applicants and 
employees confidential and maintain it in files 
separate from personnel records.  Persons 
involved in the reasonable accommodation 
process who have access to this type of infor-
mation have a continuing obligation to main-
tain its confidentiality.
 
Is an Employer Required to Meet its 
Obligations under the ADA and the 
NLRA?
Employers must balance the interests of em-
ployees seeking accommodation under the 
ADA against the employer’s NLRA obliga-
tions regarding the union and the collective 
bargaining agreement.  The Equal Employ-
ment Opportunity Commission (EEOC), the 
federal agency responsible for the enforcement 
of the ADA, has rejected the position that a 
reasonable accommodation imposes an undue 
hardship simply because it would violate a 
collective bargaining agreement.  Rather the 
employer first should determine if it could 
provide a reasonable accommodation that 
would remove the workplace barrier without 
violating the collective bargaining agreement.  
If there is no such accommodation, then the 
employer and union should attempt to nego-
tiate a variance to that part of the collective 
bargaining agreement that conflicts with a 
requested reasonable accommodation (such 
as a “light duty” assignment or a transfer to 
a position with different physical and mental 
requirements). An employer cannot use the 
existence of a collective bargaining agreement 
as its reason not to offer or implement a rea-
sonable accommodation unless it can show 
that the request would have an adverse affect 
on the other employees in the bargaining unit.  
The greater that adverse affect, the more likely 
it is that the accommodation is not reasonable.
The General Counsel for the National Labor 
Relations Board (NLRB), the federal agency 
responsible for enforcement of the NLRA, has 
stated that for a reasonable accommodation 
that 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 need 
not negotiate with the union representing its 
employees, and the employee could request 
the accommodations directly from its employ-
er.  
Employers would be required to negotiate 
with the union if the requested accommoda-
tion would cause a material, substantial, or 
significant change in the terms and conditions 
of employment, such as requiring a change in 
the collective bargaining agreement itself. 
4 	 The	ADA	and	Collective	Bargaining	Issues
A proposed accommodation that would ad-
versely affect the seniority rights of other em-
ployees would not be reasonable, and there-
fore, an employer and union refusing such an 
accommodation would not violate the ADA.  
The parties, the employer, the union, and the 
individual requesting the accommodation, 
however, would still be required to engage in 
the good faith interactive process to determine 
whether any other type of accommodation is 
available.
What Proactive Approaches are 
Available to Employers and Unions to 
Meet the Requirements of the ADA and 
the NLRA?
Employers and unions may be able to elimi-
nate or reduce the potential conflicts between 
the ADA and the NLRA through collaborative 
long-range planning.  Employers and unions 
can create a cooperative environment with 
respect to their obligations under the ADA 
and the NLRA.  At the outset, the employer 
and the union might review their collective 
bargaining agreement to ensure that individu-
als are not subject to disability discrimination.  
The employer and the union may also consid-
er including in the contract specific protections 
or safeguards for individuals with disabilities, 
procedures for the reasonable accommodation 
process, or a light duty program.  
Employers and unions could also present edu-
cational programs on the ADA, such as open 
discussions on the effects of the ADA on the 
work environment by both management and 
union personnel.
A joint employer-union committee could be 
formed to discuss and consider ADA compli-
ance issues.  The labor-management commit-
tee could consider requests for reasonable ac-
commodation and work with employees in the 
informal interactive process of determining a 
reasonable accommodation.  The committee 
might also assist in the determination of essen-
tial job functions, review necessary accommo-
dations, and analyze what accommodations 
are available or possible within the context of 
the collective bargaining agreement.
What Role Can the Shop Steward Play 
in Assisting Implementation of the 
ADA?
The union steward or business agent 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 who has 
access to employees during the work day.  The 
union can disseminate vital information about 
the ADA through the shop steward or business 
agent to its members, such as the illegality of 
discrimination against individuals with dis-
abilities and how the reasonable accommoda-
tion process works.
Conclusion
These proactive approaches will serve both the 
employer and union with respect to their obli-
gations under the ADA, to provide reasonable 
accommodation, and under the NLRA, to bar-
gain where necessary over reasonable accom-
modations that effect changes in the terms and 
conditions of employment.  Most of all, these 
proactive approaches will foster positive and 
productive work environments for employers 
and unions, and further the goal of the ADA, 
the inclusion and appreciation of persons with 
disabilities in the workplace and society.
	 W W W . H R T I P S . O R G 	 5
Resources
ADA Disability and Business Technical 
Assistance Center Hotline
800.949.4232 (voice/TTY)
Job Accommodation Network 
918 Chestnut Ridge Road, Suite 1 
Morgantown, WV 26506-6080
800 ADA-WORK (voice/TTY)
http://askjan.org/
Equal Employment Opportunity Commission 
131 M Street, NE
Washington, DC 20507
800.669.4000 (voice)
800.669.6820 (TTY)
800.669.3362 (voice) or 800.669.3302 (TTY) for 
publications 
http://www.eeoc.gov
American Federation of Labor and Congress 
of Industrial Organizations (AFL-CIO)
815 16th Street, N.W.
Washington, DC 20006
202.637.5000 (voice)
202.637.5058 (fax)
http://www.aflcio.org/
National Labor Relations Board
1099 14th Street, NW - Suite 5530
Washington, DC 20570-0001 
202.208.3000 (voice)
202.208.3013 (fax)
http://www.nlrb.gov/
	 W W W . H R T I P S . O R G 	 7
About this Brochure
This brochure is one of a series on human 
resources practices and workplace accommo-
dations for persons with disabilities edited by 
Susanne M. Bruyère, Ph.D., CRC,  Director, 
Employment and Disability Institute, Cornell 
University ILR School. 
This publication was written in 1997 and up-
dated in 2001 by Laurie M. Johnson, Esq., True 
Walsh and Miller LLP.   It was updated in 2010 
by Elizabeth Reiter, independent legal consul-
tant, Ithaca, N.Y.
These updates, and the development of new 
brochures, were funded by Cornell, the Na-
tional ADA Center Network, and other sup-
porters.
The full text of this brochure, and others in 
this series, can be found at www.hrtips.org. 
More information on accessibility and accom-
modation is available from the ADA National 
Network at 800.949.4232 (voice/ TTY), 
www.adata.org.
Disclaimer
This material was produced by the Employment 
and Disability Institute in the Cornell University ILR 
School.   Development of the original brochure series 
was funded by a grant from the National Institute on 
Disability and Rehabilitation Research (NIDRR) (grant 
#H133D10155).   Content updates were funded by 
NIDRR grant number H133 A110020.  However, those 
contents do not necessarily represent the policy of the 
Department of Education, and you should not assume 
endorsement by the Federal Government.  
The U.S. Equal Employment Opportunity Commission 
has reviewed it for accuracy.  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 Commission or 
the publisher.  EEOC interpretations of the ADA are 
reflected in its ADA regulations (29 CFR Part 1630), 
Technical Assistance Manual for Title I of the Act, and 
Enforcement Guidance.  
Cornell University is authorized by NIDRR to provide 
information, materials, and technical assistance to indi-
viduals and entities that are covered by the Americans 
with Disabilities Act (ADA).  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 responsi-
bilities under the Act, nor binding on any agency with 
enforcement responsibility under the ADA.
The Equal Employment Opportunity Commission has 
issued enforcement guidance which provides ad-
ditional clarification of various elements of the Title 
I provisions under the ADA.  Copies of the guidance 
documents are available for viewing and downloading 
from the EEOC web site at: 
http://www.eeoc.gov
8 	 The	ADA	and	Collective	Bargaining	Issues
Contact Information
Susanne M. Bruyère, Ph.D., CRC
Director, Employment and Disability Institute
Cornell University
ILR School
201 Dolgen Hall
Ithaca, New York 14853-3201
Voice: 607.255.7727
Fax: 607.255.2763
TTY: 607.255.2891
Email: smb23@cornell.edu
Web: www.edi.cornell.edu
To view all the brochures in this series, please visit:
www.hrtips.org


https://digitalcommons.ilr.cornell.edu/cgi/viewcontent.cgi?article=1300&amp;context=edicollect

The ADA and Collective Bargaining Issues

Abstract

Similar works

Full text

Available Versions

eCommons (Cornell Univ.)

DigitalCommons@ILR