The Americans with Disabilities Act

The Americans with Disabilities Act (ADA) and the ADA Amendments Act of 2008 (ADAAA) make it illegal to discriminate against employees because of disabilities. 1 in 5 Americans...a total of 56 million people live with disabilities.

Disabled Americans represent a huge pool of talent that shouldn’t be wasted because of prejudices and stereotypes.  The ADA was developed to utilize that talent and make the workplace a fair place for all Americans.  Modeled after the Civil Rights Act of 1964, the ADA is the “equal opportunity” law for disabled persons.

The ADA makes it unlawful to discriminate in employment practices such as

• Recruitment
• Hiring
• Training
• Job assignments
• Compensation
• Benefits
• Promotions
• Leave
• Layoffs
• Termination
• All other employment-related activities.

It is also unlawful for employers to retaliate against employees for asserting their rights under the ADA.

Many disabilities are easy to recognize; however, an even greater number of disabled employees suffer from conditions that are not easy to spot.

The ADA defines a disability as “a physical or mental impairment that substantially limits one or more major life activities.” This covers employees who have a history or record of such an impairment, or employees who are perceived by others as being impaired.

The ADAAA defines major life activities as: 

• Caring for oneself
• Performing manual tasks
• Seeing
• Hearing
• Eating,
• Sleeping
• Walking
• Standing
• Lifting
• Bending
• Speaking
• Breathing
• Learning
• Reading
• Concentrating
• Thinking
• Communicating
• Working

In addition, major bodily functions are covered under the Act.  These include, but are not limited to functions of the immune, digestive, bowel, bladder, neurological, brain, respiratory, circulatory, endocrine, and reproductive systems as well as normal cell growth.

The Act explicitly mentions that disability protection is not limited to those major life activities and major bodily functions specifically listed.

The ADAAA also specifically states that medical science, such as medicine for Parkinson’s Disease or a prosthetic leg, cannot be used to reject a disabled person from coverage under the Act.

In addition, disabilities like Lupus that are episodic or in remission must be assessed when the worker is suffering from it.

Exceptions to the ADA are:

• One-time ailments such as broken bones or pneumonia
• Drug Addiction (illegal drugs)
• Visual impairments corrected by contacts or glasses.

The Act states that disabled employees cannot be discriminated against due to perceptions about their disabilities. For instance, a hearing-impaired worker cannot be denied a promotion because of the perception that he or she won't be able to communicate well. The ADA reasons that employees should not be discriminated against because of another person’s beliefs, prejudice, ignorance, or fears.

The law requires that employers make accommodations for disabled workers so that they may have equal opportunities in the workplace.

• An accommodation is any change in the work environment or in the way things are usually done.
• If the accommodation is an undue hardship, as defined by the ADA, then the employer is exempted; however, most changes are not very expensive and are easy to implement.
• Accommodations can be as simple as a Braille keyboard or a larger monitor for an employee with a visual disability.…changes far less expensive than the huge cost of replacing an employee or hiring a less qualified one.
• The first step in assessing the need for accommodations is to consult with the disabled person. He or she is in the best position to know what is needed and in many cases, can provide a creative and inexpensive solution.
• Meetings to discuss accommodations should be thoroughly documented. This is essential if your organization is ever involved in litigation.
• If an employee comes to you with a disability claim, it’s always better to err on the side of caution. managers don’t have a medical degree and therefore are not qualified to make a diagnosis of a disability.
• Be proactive.  Keep your eyes open and watch for employees who need assistance. Making sure that your employees have the tools to do their jobs effectively will profoundly benefit your organization.

The ADA states that employers must accommodate applicants during the interviewing process.

• The interviewing location must be handicap-accessible so that all qualified applicants have equal opportunity.
• Interview questions should be taken from a previously compiled list so that interviews are consistent for every applicant.  One wrong question could show bias and result in a lawsuit.
• To formulate these questions, it is critical to have an accurate and detailed job description that lists the essential and non-essential functions of the job.
• Essential functions are the core expectations and responsibilities of the job.  In other words, the reason the job exists.
• Non-essential functions are the secondary or marginal responsibilities that are not key aspects of the job.
• Make sure that the functions in your job description are performed in practice and not just listed on paper as a responsibility.
• Neither on an application nor during an interview can you ask questions about a person’s physical or mental disabilities, medical condition or medical history. Instead, you may ask the candidate if he or she can perform the essential functions of the job with or without reasonable accommodation.
• You may ask a candidate to demonstrate an essential function, however, this demonstration must be asked of every candidate being considered for the same position.
• NEVER ask a candidate if he or she has a disability. If the applicant is not hired, the question could be used to demonstrate bias in a discrimination lawsuit.
• A qualified candidate is defined as a person who can perform the essential functions of the job with or without reasonable accommodations. of his or her disability.
• No qualified candidate can be denied employment simply because of his or her disability.

An employer cannot require a medical examination prior to a job offer. However, employment can be made contingent upon passing a medical examination, provided that every employee who is offered that job takes the same examination.

An employee cannot be denied employment because of information found in an exam unless the exam reveals that the employee cannot perform the essential functions of the job with or without accommodation. The results of medical exams must be kept confidential and stored in separate medical files.

Employers always have the right to terminate an employee when there is just cause. This holds true for employees with disabilities as well.  However, one of the following three conditions must be met.

1.  The termination is unrelated to the disability.

2.  The employee does not meet legitimate requirements for the job, such as performance or production standards, with or without reasonable accommodation.

3.  The employee poses a direct threat to health or safety in the workplace because of his or her disability.

While the law itself can sometimes be confusing, the spirit of the ADA is not.  Employers should endeavor to provide reasonable accommodations and therefore equal opportunity to the millions of talented disabled workers in the nation today. Not only is it the right thing to do from an ethical and business perspective...it’s also the law.

Train your employees on the ADA.