By Morgan Leppla and Laura Friedman
Signed in 1990, the Americans with Disabilities Act (ADA) is the most contemporary federal legislation related to disabilities, outlining important workers’ rights and their employers’ obligations to provide reasonable accommodations. However, it does raise questions in regards to union contracts under the National Labor Relations Act (NLRA), which was passed in 1935 and protects workers’ rights to unionize, collectively bargain, and take action (e.g. strikes). Thus, portions of the NLRA and ADA conflict with each other, putting strain on union workers who need reasonable accommodations.
The ADA outlaws discrimination against qualified individuals with disabilities, stating that individuals must negotiate with employers for “reasonable accommodations.” On the other hand, the NLRA prohibits union members from negotiating individually. Once the ADA was passed in 1990, it outlawed any part of previously entered collective bargaining contracts that included discriminatory clauses. Additionally, an employer cannot use a collective bargaining agreement as a means to engage in discriminatory practices that are otherwise prohibited by the ADA.
The challenge for employers is balancing their dual obligations to comply with established collective bargaining arrangements while accommodating individual workplace needs.
Many union contacts contain seniority clauses, providing benefits based on how long union employees have been in their position. For example, an employee who is at a company for 10 years may choose their hours before the newest hire. However, if the newest hire has a disability, it may be necessary for them to pick their hours before the more senior worker as a reasonable accommodation. This violates the union contract and NLRA for two reasons: 1) it can be considered direct dealing with an employee, and 2) it overlooks the terms of the contract. Even so, this accommodation does not otherwise pose “undue hardship,” and therefore should be granted under the ADA.
NOT SO FAST: Firstly, the NLRA does not contain language that protects people with disabilities. Secondly, the ADA was meant to expand upon, not replace, the Rehabilitation Act of 1973, which prohibits discrimination against people with disabilities in federal hiring practices and requires affirmative action in hiring for federal agencies, programs that receive federal funding, federal contractors, and subcontractors. However, the ADA does not have an affirmative action requirement, so employers are no longer obligated to give applicants with disabilities preferential treatment throughout the recruitment or hiring process. Furthermore, ignoring the seniority clauses in collective bargaining agreements would be using affirmative action in the hiring of persons with disabilities, and therefore illegal, adding the web of confusion as to which legislation must employers comply with.
Other issues are related to privacy of medical records. In one instance, a union needed workers’ medical histories in order to meaningfully negotiate their contract, which is permitted by the NLRA but prohibited by the ADA. Due to lack of evidence, guidance, and clarity, the court had the parties settle. While in this particular instance the issue was put to bed, the inability to make a decision failed to set a precedent which could address future disputes.
This amounts to a murky legal landscape. While some of the language has been interpreted by courts, there is a lot employers and individuals need to navigate on their own. Such uncertainty and lack of clarity further hurts the disabled individual because they have to take extra strides to ensure that they receive reasonable accommodations and are not subjected to discrimination based on disability by either the terms of a collective bargaining agreement or the actual employer.
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