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Ask The Lawyer By: Daniel A. Gwinn, Esq.

| September 18, 2017

TOO SMALL TO BE SUED UNDER ADA? LOOK OUT FOR SUIT UNDER STATE LAW!

QUESTION: One of my workers recently asked me for an accommodation due to a back injury: He needs to sit down for 10 minutes every hour. I only have seven people on staff; I can’t have one of them sitting for one sixth of his time at work! He says his request is reasonable, and he’ll sue me for discrimination under the Americans with Disabilities Act.

ANSWER: The good news is, he can’t sue you under the federal Americans with Disabilities Act (ADA) – it only applies to businesses employing at least 15 people.

However, before you breathe that sigh of relief, you should be aware that under Michigan’s equivalent to the ADA, the Persons with Disabilities Civil Rights Act (PWDCRA) an employer is defined as “a person who has 1 or more employees.” So, you could be sued if you fail to make a reasonable accommodation. An accommodation is reasonable if it will not impose undue hardship on the employer, and if it will enable an employee to perform all the duties of a particular job or position.

Under the PWDCRA, the question of whether a requested accommodation would impose such a hardship is, in part, tied to the cost of the accommodation and the size of the business. For small business like yours, if the cost of an accommodation exceeds a certain amount, the accommodation is viewed as imposing an undue hardship on the employer. You may be able to include in the cost of a proposed accommodation such less obvious costs as workplace disruption, or having to pay other workers to perform “essential functions” of the job the disabled employee is unable to perform.

Under both the PWDCRA and the ADA, you should engage in an “interactive process” in which you try to find an accommodation that will work for both you and your employee.

Two big differences between the ADA and the PWDCRA are that a person seeking an accommodation under the PWDCRA must put the request in writing and a person wanting to sue under the Michigan law can go straight to court to file a suit, without having to first file a complaint with the EEOC and wait for a “right to sue” letter, as under the ADA.

If you want to learn how to better protect yourself from a lawsuit under either of these laws, or if an employee (or former employee) is threatening to bring a suit against you, you may wish to consult with an attorney. The lawyers at GWINN TAURIAINEN PLLC are experienced attorneys and are happy to answer your questions. Give us a call for a free initial telephone consultation about your legal needs. For consideration of your questions in our web column, please submit your inquiry on the “Contact Us” page of our website at www.gwinntauriainenlaw.com.

Information provided on “Ask the Lawyer” is current as of the date of publication. Laws and their interpretation are subject to change. The material provided through “Ask the Lawyer” is informational only; it should not be considered legal advice. Submitting a question to “Ask the Lawyer” does not create an attorney-client relationship between the person submitting the question and GWINN TAURIAINEN PLLC. To view previous columns, please visit our website.

GWINN TAURIAINEN PLLC, is a Troy based law firm representing clients from Warren, Sterling Heights, Ferndale, Royal Oak, Oak Park, Oakland and Wayne Counties and all of Southeast Michigan

ASK THE LAWYER
By: Daniel A. Gwinn, Esq.
Attorney and Counselor at Law
GWINN TAURIAINEN PLLC
901 Wilshire Drive, Suite 550
Troy, MI 48084
(248) 247-3300
(248) 247-3310 facsimile
daniel@gwinnlegal.com
http://www.gwinntauriainenlaw.com/

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Category: Featured Column

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