Americans with Disabilities Act

The Americans with Disabilities Act (ADA) was enacted in 1990, and it applies to most employers with fifteen or more employees for at least twenty weeks in the current or last calendar year. Additionally, the requirements of the act apply to any agents of the employer. Under the law, employers are prohibited from discriminating against persons with disabilities in regard to job application procedures, hiring, advancement, or discharge, employee compensation, job training, and other terms, conditions, and privileges of employment. However, the ADA does not prohibit discrimination against any person with a physical or mental impairment. The ADA only protects a qualified individual with a disability. A qualified individual with a disability is defined in the statute as an individual with a disability who, with or without reasonable accommodation, can perform the essential functions of the employment position that such individual holds or desires. The ADA also prohibits an employer from discriminating against someone because he or she has a record or previous history of having a physical or mental impairment, even if he or she does not have the impairment any more, or because the employer regards the person as having an impairment covered by the ADA, even when the employee is not impaired.

The ADA defines disability as a physical or mental impairment that substantially limits one or more of the major life activities of the individual. Therefore, merely having an impairment or a medical diagnosis does not mean that a person will be considered disabled for purposes of the ADA. He or she also needs to demonstrate that the impairment substantially limits what has come to be known as a major life activity. As used in the ADA, the term substantially means considerable or to a large degree. Major life activities may include such activities seeing, hearing, speaking, breathing, learning, caring for oneself, and working. Another way to decide whether an activity is a major life activity is to ask the question whether it is the type of activity that is of central importance to daily life? If a person is taking measures to correct their impairment, such as taking medication, the effects of those measures--both positive and negative--must be taken into account when judging whether that person is substantially limited in a major life activity.

Whether an employee or applicant has a disability covered by the ADA must be evaluated on an individual, case-by-case basis. The ADA clearly covers only typical disabilities such as quadriplegia, paraplegia, cerebral palsy, limb loss, and total blindness or deafness. An individualized assessment is particularly necessary when the impairment in question is one for which symptoms or effects can vary widely from person to person.

In order to be a qualified individual with a disability and protected by the ADA, an employee or applicant must show that he or she can perform the essential functions of his or her position, or the position that he or she is seeking, either with or without a reasonable accommodation provided by the employer. So, for example, a secretary who, with or without an accommodation is unable to type probably would not be protected by the ADA as he or she could not perform an essential function of being a secretary; however, a secretary who can type only with a special keyboard, but who is able to adequately perform all of her typing duties once she has this keyboard, likely would be protected.

The ADA requires any employer covered by its terms to provide a reasonable accommodation to any employee who is disabled under the ADA and who needs that accommodation to perform the essential functions of his or her position. Once the employee notifies the employer of the need for an accommodation, the employer is required to cooperate with the employee in finding such an accommodation. The employer may decline to provide a reasonable accommodation only if the accommodation would impose an undue burden on the employer, such as when it would be too expensive or would require the employer to hire an extra employee to perform the disabled employee's job duties. Employees must also participate in this interactive process of determining the accommodation needed by the employee.

Reasonable accommodations can include modifying the employee's work schedule, allowing the employee to take additional unpaid leave for medical reasons or to use vacation for medical leave, moving the employee to a vacant position or to a temporary light-duty position, installing special equipment to help the employee perform his or her duties, or assigning non-essential duties of the employee's job, such as those that only occupy a few minutes a day, to another employee. A reasonable accommodation, however, does not mean the best or most effective accommodation. Additionally, the re-assignment of an employee as an accommodation to a position ordinarily cannot trump established seniority or other rules that would assign the position to another, although the employee requesting an accommodation with such a conflict can show special circumstances that make an exception from seniority system reasonable in particular case. Using our example from above, adaptive equipment such as a new keyboard is likely not to impose an unreasonable burden on the employer. However, if the accommodation needed by the secretary was voice-recognition software and the nature of the material being typed by secretaries for that employer was not compatible with the use of such software, the burden might increase to the point that the employer would not be required to provide that accommodation.

An employee or applicant who is currently engaging in the illegal use of drugs is not a qualified individual with a disability and thus is not protected by the ADA. However, an individual who has successfully completed or is participating in a supervised drug rehabilitation program or otherwise rehabilitated, and who is no longer engaging in the illegal use of drugs, may be protected. An employer may prohibit the illegal use of drugs and the use of alcohol at the workplace by all employees, and may prohibit employees from being under the influence of alcohol or from using drugs at the workplace. Employees who engage in illegal use of drugs or who are alcoholics may be held to the same standards for employment or job performance and behavior that the employer holds other employees, even where their unsatisfactory performance or behavior is related to the drug use or alcoholism. Certain employees subject to federal regulations regarding alcohol and illegal use of drugs have stricter requirements.

Under the ADA, employers cannot require a medical examination or inquire about an employee disability or the nature or severity of the disability unless the inquiry is job-related and consistent with business necessity. However, the employer may conduct voluntary medical examinations, including voluntary medical histories, as part employee health programs. Employers may make inquiries into the ability of an employee to perform job-related functions.

The ADA bars an employer from asking a job applicant for medical information until the applicant has actually been offered the position, although pre-employment inquiries may be made into the applicant's ability to perform job-related functions. Once the employer has made a conditional job offer, it may seek job-related medical information from the applicant, for example requiring a strength or agility test from a fire-fighter candidate, or testing medical worker candidates for infectious diseases. An employer may require job-related medical information from existing employees. The ADA and its regulations also allow an employer to use qualifications standards to screen out a potential worker with a disability not only for risks that he or she would pose to others in the workplace as a result of the disability, but also for risks on the job to his or her own health or safety.

Many states have enacted laws imposing additional requirements on employers or providing broader protections for employees.

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