What is the ADA and who does it protect?
Title I of the Americans with Disabilities Act of 1990 ("ADA") makes it unlawful to discriminate in employment against people with a disability. The ADA defines a disability as a physical or mental impairment that substantially limits one or more major life activities, a person who has a history or record of such an impairment, or a person who is perceived by others as having such an impairment. The ADA also prohibits an employer from retaliating against a person for making claims or asserting rights under the ADA, and protects people who are discriminated against because they have a known association or relationship with an individual with a disability. Prohibited employment practices include discriminating against a disabled applicant or employee in recruitment, hiring, firing, compensation, promotion, job assignments, transfer, training, leave, layoff, benefits, and any other employment related activity.
What employers are covered and what must they do?
The ADA applies to employers with 15 or more employees. Employers are required to provide reasonable accommodations to qualified employees who can perform the essential functions of the job.
A reasonable accommodation is a change that accommodates an employee with a disability without causing an undue hardship on the employer. Undue hardship is defined as an action requiring significant difficulty or expense in relation to the size, nature, resources, and structure of the employer's business. Reasonable accommodations may include physical changes to the workplace such as ramps, accessible restroom facilities, and adequate parking spaces to accommodate a person in a wheelchair. Flexibility of work schedules may be considered a reasonable accommodation to allow for breaks or unpaid leave to attend medical appointments. Reallocating a non-essential function to another employee may also be considered a reasonable accommodation.
To be considered a qualified employee, an individual must meet the legitimate requirements for the position. Factors to be considered are whether the applicant or employee has the education, skill, experience, training, or licensing required for the position.
In order to perform the essential functions of the job, an employee must be able to accomplish the basic job duties of the position, with or without a reasonable accommodation. Factors to consider include whether the reason the position exists is to perform that function, the number of employees available to perform the function, and the degree of skill required to perform the function.
What can employers do to protect themselves?
In making employment related decisions, employers are permitted to make non-disability related decisions. For example, an employer may chose not to hire an applicant for lack of experience. However, when disability is a factor in any employment related decision, employers must show that the person is unable to perform the job's essential functions with a reasonable accommodation. A written job description prepared in advance of advertising or interviewing applicants for a job will be considered as evidence of the essential functions of the job. Job descriptions should be reviewed to make sure that they accurately reflect the actual functions of the job.
An employer should not ask or require a job applicant to take a medical examination before making a job offer, and, unless required by another federal law or regulation, it should not make any pre-offer inquiry about a disability or the nature or severity of a disability. When questions arise about an applicant or employee who may be disabled, it is important for employers and managers to talk to the human resources department or consult an attorney as to how to respond.
If you have questions regarding the contents of this article, or other similar issues, please contact your HWE relationship attorney or visit us at http://www.hwelaw.com.