By Will Miller, Attorney at Law
The Americans with Disabilities Act of 1990 (and its subsequent amendments) was designed to protect those with disabilities from discrimination in employment (Title I); require state and local governments to ensure services and programs are accessible to individuals with disabilities (Title II); and set access requirements governing public accommodations and commercial facilities (Title III). The Act has had far-reaching consequences over the past thirty-plus years, and new best practices continue to emerge as the law evolves through government rule-making, court decisions and technological advancement (one of the latest documents published was Guidance on Nondiscrimination in Telehealth, a technology that did not exist when the law was written).
This topic is too broad to cover in a single article, so we will begin by discussing Title I and employment. The majority of employers with 15 or more employees are covered under the law. The Americans with Disabilities Act is intended to ensure individuals with disabilities have the same employment opportunities as those without disabilities. In short, employers may not legally discriminate against an individual who is otherwise qualified for the job simply because they have a disability. Additionally, employers must provide reasonable accommodations to an individual with a disability who is otherwise qualified for the job to perform the essential functions of that job and enjoy equal employment opportunities.
How Does the ADA Define a Disability?
42 U.S. Code § 12102 of the Act defines a disability as a physical or mental impairment that “substantially limits” one or more major life activities or impacts one or more major bodily functions. Examples include blindness, mobility impairments, inability to learn or concentrate, major depressive disorders, post-traumatic stress disorder, immune system disorders, respiratory issues, and numerous other physical or mental impairments. The individual does not need to currently exhibit the impairment; they are covered under the ADA if they have a record of impairment (for example, a cancer diagnosis that is currently in remission). Remember that not all disabilities are obvious.
Performing Essential Job Functions
The Act is very clear to specify that the employer has no requirement to hire any individual who is not qualified to perform the essential functions of the job. Other exclusions include those using illicit drugs, anyone who poses a threat, or those who fall into specific other categories. It does require covered employers to treat those with disabilities equally throughout the hiring process and throughout their employment. While we often talk about the ADA during the hiring process, your current employees may become disabled and require accommodation.
Reasonable Accommodation & Undue Hardship
Employers are required to provide – at their expense – a “reasonable accommodation” to any individual with a disability who requests additional support to perform the essential duties of the job. Many of these accommodations are inexpensive and easy to implement. Examples might include adjusting the height of a desk to accommodate a wheelchair, providing a special keyboard or ergonomic chair, adding software or other supportive technology, moving an individual to a different position, or adjusting the individual’s schedule to accommodate transit needs. For instance, a grocery store might accommodate an employee with an intellectual or developmental disability being hired as a clerk by permitting a job coach or family member to accompany him the first few days as he is trained to ensure he is able to handle the new role. In my particular case, my computer includes software to read text aloud and my service dog accompanies me to work. Individuals with disabilities should have access to the same work facilities as those without a disability.
The Act does specify that an employer is not required to provide an accommodation that would cause an undue hardship on the employer. Defining what constitutes an undue hardship can be a challenge. The Act recommends taking into consideration the specific request, cost to implement the request, size of the employer, financial position, and other factors.
Best Practices to Ensure Compliance
Here are some steps you can take to stay in compliance. Even if your business is small enough that the ADA does not apply, you may wish to consider following these guidelines:
- Make the job application process accessible or offer alternative ways to apply. As an example, a job application that is scanned as a picture and posted online cannot be read by software being used by a blind person. An online form or text-based document (as opposed to a scanned image of the application) would be accessible.
- Design your questions to focus on finding out if the applicant has the skills needed to do the job. Be consistent in the interview process, using the same set of questions as a baseline for each applicant, regardless of disability status.
- Avoid asking questions on the job application or in an interview that attempt to determine if an individual has a disability. You may ask the applicant how they will perform the essential job functions with or without a reasonable accommodation.
- If your interview process includes testing, provide a reasonable accommodation when needed. For example, offer a verbal version of a written test or provide an ASL translator if someone is hearing impaired.
- Employers may require a medical exam or drug testing once a job offer has been accepted; however, this requirement must be applied to all employees and be justified (i.e., for safety).
- If an employee requests a reasonable accommodation to allow them to perform the essential job duties, you must provide an accommodation unless it is an undue hardship.
If you have questions about meeting the requirements of the Americans with Disabilities Act, providing reasonable accommodations, or whether doing so would constitute an undue hardship to your business, make an appointment today to speak to an employment law attorney at Brinkley Walser Stoner.