Americans with Disabilities Act and Hiring

Americans with Disabilities Act and Hiring

If you hire employees, you must be aware of the Americans with Disabilities Act (ADA). The ADA is a federal civil rights law designed to remove barriers preventing qualified individuals with disabilities from enjoying the same opportunities that are available to persons without disabilities. The rules apply to private employers, state and local governments, employment agencies and labor unions with 15 or more employees.

The ADA prohibits discrimination in all employment practices, including job application procedures, hiring, firing, advancement, compensation, training, and other terms, conditions and privileges of employment. The ADA rules apply when an individual has a disability eligible for protections under the law AND that individual is qualified to perform the essential functions of the job (these are duties that are fundamental to the job).

What is the definition of a disability?

ADA defines disability (sometimes referred to as “substantially limiting conditions”) as:

  • a physical or mental impairment that substantially limits one or more major life activities; OR
  • a person with a record of such an impairment; OR
  • a person who is regarded as having such an impairment.

Specific examples of substantially limiting conditions may include:

  • Mobility impairments due to missing limbs or other disorders
  • Cancer
  • Diabetes
  • Human Immunodeficiency Virus (HIV) infection
  • Transitory impairments such as epilepsy
  • Major depressive disorder, bipolar disorder, post-traumatic stress disorder, obsessive compulsive disorder, and schizophrenia

Who is not covered by the ADA?

  • Current users of illegal drugs (employers may conduct drug testing for illegal drugs)
  • Transgender, homosexual, and bisexual individuals
  • Those who have the conditions of compulsive gambling, kleptomania, or pyromania
  • People who pose a direct threat

Are you are in compliance with the ADA?

There are steps you need to take as an employer to ensure you are in compliance with the ADA. Here are some suggested best practices:

  • Employers must make the job application process accessible to anyone who wishes to apply, and must provide reasonable accommodations during the application process.
  • A job application cannot ask about illnesses, medication or medical treatment, substance abuse, disabilities, injuries, Workers Compensation, or any other questions designed to elicit information about whether the individual has a disability.
  • A job application can ask whether an employee can perform the essential functions of the job, with or without a reasonable accommodation.
  • An employer may select the most qualified applicant, and does not have to give preference to a qualified applicant with a disability.
  • Once a job offer has been made, an employer is permitted to require a medical exam before an employee begins employment duties – as long as ALL employees are subjected to the examination and it is consistent with business necessity.
  • Once an employee is hired, an employer must provide reasonable accommodations to allow her/him to perform the essential job duties.

What is a Reasonable Accommodation?

A reasonable accommodation is any modification, adjustment, or change to the work environment that will enable a qualified person with a disability to perform the job or to access the benefits available to similarly situated employees who do not have a disability. Individuals must ask for reasonable accommodations; accommodations must be provided at the employer’s expense. An employer may request medical documentation if the nature of the employee’s limitations are not obvious. An employer may claim undue hardship as a defense against providing a reasonable accommodation.

If you have questions about the American with Disabilities Act or providing reasonable accommodations for a worker with a disability, you may wish to speak with an employment law attorney.