Written by: Joseph Camilli
Date published: February 28, 2017
Reading time: 4 minutes
The Americans with Disabilities Act (ADA) of 1990 prohibits employers from discriminating against individuals with disabilities protected by the ADA. Individuals are protected during the recruiting and hiring process, throughout employment, and termination. Employers are also required to provide accommodations within the work place, such as wheelchair accessibility or interpreters for those who are hearing impaired, unless such accommodations bring about an undue hardship or disrupt the operation of business. Not everyone with a disability is protected under the ADA. For an individual to be protected, they must be qualified for the job and have a disability as defined by the law.
Employers with 15 or more employees, including state and local governments, employment agencies, and labor organizations are all covered under the ADA. Federal sector employees are protected under the ADA, but under a separate federal law.
Prohibited Employment Practices
The ADA prohibits covered employers from discriminating against applicants and employees with disabilities in job application procedures, hiring, firing, advancement, compensation, job training and other terms, conditions and privileges of employment.
Further, if an applicant or employee asserts his/her rights under the ADA, employers are prohibited from retaliating against the individual. The ADA further prohibits employers from discriminating against applicants or employees, whether they have a disability or not, because of their relationship or association (both personal and professional) with an individual who is disabled.
Qualified individuals with disabilities
Under the ADA, a person has a disability if he/she has a physical or mental impairment that substantially limits a major life activity; including individuals who have a record of and are regarded as having a substantially limiting impairment.
Major life activities include, but are not limited to, caring for oneself, performing manual tasks, seeing, hearing, eating, sleeping, walking, standing, lifting, bending, speaking, breathing, learning, reading, concentrating, thinking, communicating and working.
A major life activity also includes the operation of a major bodily function, including but not limited to, functions of the immune system, normal cell growth, digestive, bowel, bladder, neurological, brain, respiratory, circulatory, endocrine and reproductive functions.
An applicant or employee with a disability must be able to perform essential functions of the job with or without reasonable accommodations. Factors to consider in determining if a function is essential include:
- Whether the reason the person exists is to perform that function;
- The number of employees with who the function can be distributed;
- The degree of expertise or skill required to perform the function.
An employer does not have to provide reasonable accommodations unless an applicant or employee with a disability has requested one. If an employer believes that a medical condition is hindering an employee’s performance, the employer may ask the employee how to solve the problem and if reasonable accommodations are needed. Under the ADA, an employer is required to provide the necessary accommodations for an applicant or an employee so long as it would not impose an undue hardship on the operation of business. The accommodation will vary from individual to individual and not everyone with a disability, or even the same disability, will require the same accommodations. Reasonable accommodations may include, but is not limited to:
- Making existing facilities used by employees readily accessible to and usable by persons with disabilities;
- Job restructuring, modifying work schedules, reassignment to a vacant position; and
- Acquiring or modifying equipment or devices, adjusting or modifying examinations, training materials, or policies and providing qualified readers or interpreters.
The employer and employee need to work together to discuss the needs and what accommodation would be appropriate. If more than one accommodation would work, the employer may choose the one that costs less or is easier to provide. However, an employer is not required to provide personal use items such as glasses or hearing aids.
Medical examination and inquiries: Employers may not ask applicants about the existence, nature or severity of a disability. Applicants may be asked about their ability to perform essential job functions. A job offer may not be conditioned on the results of a medical examination, unless such an examination is required for all entering employees. Medical examinations must be job-related and consistent with the employer’s business needs.
Medical records: Medical records are confidential and therefore any medical information an employer learns about any employee or applicant must be kept confidential. Information can be confidential even if it contains no medical diagnosis or treatment course and even if it is not generated by a health care professional. For example, an employee’s request for a reasonable accommodation would be considered medical information subject to the ADA’s confidentiality requirements.
Employees who engage in illegal drugs are not protected under the ADA and those individuals, including alcoholics, may be held to the same performance standards as other employees.
It is unlawful to retaliate against an individual for opposing employment practices that discriminate based on disability or for filing a discrimination charge, testifying or participating in any way in an investigation, proceeding or litigation under the ADA.
Every employer covered by the ADA must post notices, including the “EEO is the Law” poster in an accessible format to applicants, employees and members describing the applicable provisions of the ADA.