December 7, 2004
Editor's Note: Much of the following information was taken from a U.S. Department of Justice comprehensive list of questions and answersabout the Americans With Disabilities Act.
Does your company have 15 or more employees? If so, it must comply with the Americans With Disabilities Act (ADA) that prohibits employment discrimination on the basis of disability and includes reasonable accommodation and safety provisions.
According to the U.S. Department of Justice (DOJ), the law prohibits discrimination in all employment practices, including job application procedures; hiring; firing; advancement; compensation; training; and other terms, conditions, and privileges of employment. It applies to recruitment, advertising, tenure, layoff, leave, fringe benefits, and all other employment-related activities.
The ADA clearly defines unlawful prehiring practices and states that an employer doesn't have to give preference to a disabled applicant. The employer is free to select the most qualified applicant available based on reasons unrelated to a disability.
Accommodations may be needed to ensure that tests or examinations measure the actual ability of an individual to perform job functions rather than reflect limitations caused by the disability. Tests should be given to people who have sensory, speaking, or manual impairments in a format that does not require the use of the impaired skill, unless it is a job-related skill that the test is designed to measure.
Employment discrimination is prohibited against qualified individuals with disabilities. Qualified individuals are persons who meet legitimate skills, experience, education, or other requirements of an employment position that he or she holds or seeks, and who can perform the essential functions of the position with or without reasonable accommodations. This includes applicants for employment and employees.
An individual is considered to have a disability if he or she has a physical or mental impairment that substantially limits one or more major life activities, has a record of such an impairment, or is regarded as having such an impairment. Persons discriminated against because they have a known association or relationship with an individual with a disability also are protected.
The first part of the definition makes clear that the ADA applies to persons who have impairments and that these must substantially limit major life activities, such as seeing, hearing, speaking, walking, breathing, performing manual tasks, learning, caring for oneself, and working. An individual with epilepsy, paralysis, HIV infection, AIDS, a substantial hearing or visual impairment, mental retardation, or a specific learning disability is covered, but an individual with a minor, nonchronic condition of short duration, such as a sprain, broken limb, or the flu, generally would not be covered.
The second part of the definition protecting individuals with a record of a disability would cover, for example, a person who has recovered from cancer or mental illness.
The third part of the definition protects individuals who are regarded as having a substantially limiting impairment, even though they may not have such an impairment. For example, this provision would protect a qualified individual with a severe facial disfigurement from being denied employment because an employer feared the negative reactions of customers or co-workers.
How do you provide the requisite reasonable accommodations for both current employees with disabilities and those who may interview for future jobs?
Reasonable accommodation is defined as any modification or adjustment to a job or the work environment that enables a qualified applicant or employee with a disability to participate in the application process or to perform essential job functions. Reasonable accommodation also includes adjustments to ensure that a qualified individual with a disability has rights and privileges in employment equal to those of employees without disabilities.
An employer is required to accommodate a known disability of a qualified applicant or employee only. The requirement generally is triggered by a request from an individual with a disability, who frequently will be able to suggest an appropriate accommodation.
Accommodations must be made on an individual basis, because the nature and extent of a disabling condition and job requirements vary in each case. If the individual does not request an accommodation, the employer is not obligated to provide one, except where an individual's known disability impairs his or her ability to know of, or effectively communicate a need for, an accommodation that is obvious to the employer. If a person with a disability requests, but cannot suggest, an appropriate accommodation, the employer and the individual should work together to identify one. Many public and private resources can provide assistance without cost.
An employer is not required to make an accommodation if it would impose an undue hardship on the business operation. Undue hardship is defined as an action requiring significant difficulty or expense when considered in light of a number of factors. These factors include the nature and cost of the accommodation in relation to the size, resources, nature, and structure of the employer's operation.
Undue hardship is determined on a case-by-case basis. When the facility making the accommodation is part of a larger entity, the larger organization's structure and overall resources would be considered, as well as the financial and administrative relationship of the facility to the larger organization. In general, a larger employer with greater resources would be expected to make accommodations requiring greater effort or expense than would be required of a smaller employer with fewer resources.
If a particular accommodation would be an undue hardship, the employer must try to identify another accommodation that will not pose such a hardship. Also, if the cost would impose an undue hardship on the employer, the individual with a disability should be given the option of paying the portion of the cost that would constitute an undue hardship or provide the accommodation.
Under Title I, an employer is not required to make its existing facilities accessible until a particular applicant or employee with a particular disability needs an accommodation, and then the modifications should meet that individual's work needs. However, employers should consider initiating changes that will provide general accessibility, particularly for job applicants, since it is likely that people with disabilities will be applying for jobs. The employer does not have to make changes to provide access in places or facilities that will not be used by that individual for employment-related activities or benefits.
According to the U.S. Department of Labor (DOL), the Occupational Safety and Health Administration (OSHA) Reform Act requires employers to provide work environments free of recognized hazards likely to cause death or serious injury, as well as to comply with government safety and health standards. OSHA and the ADA interact in some areas, including standards and reporting requirements.
In complying with specific OSHA standards, employers might want to consider incorporating ADA reasonable accommodation concepts. For example, OSHA requires employers to label, in writing, certain toxic materials and distribute written materials explaining their potential dangers to employees. An ADA reasonable accommodation also could be using the universal symbol for poison and providing verbal warnings of the potential danger.
The DOJ ADA questions and answers list includes the following question: Can an employer consider health and safety when deciding whether to hire an applicant or retain an employee with a disability?
The answer is yes. The ADA permits employers to establish qualification standards that will exclude individuals who pose a direct threat—for example, a significant risk of substantial harm—to the health or safety of the individual or others, if that risk cannot be eliminated or reduced below the level of a direct threat by reasonable accommodation.
However, an employer simply may not assume that a threat exists; the employer must establish through objective, medically supportable methods that significant risk that substantial harm could occur in the workplace exists. By requiring employers to make individualized judgments based on reliable medical or other objective evidence rather than on generalizations, ignorance, fear, patronizing attitudes, or stereotypes, the ADA recognizes the need to balance the interests of people with disabilities against employers' legitimate interests in maintaining a safe workplace.
The DOL's Office of Disability Employment Policy (ODEP) offers a list of questions based on successful employment practices. They are designed to help small businesses determine if they understand the intent and provisions of the ADA.
If you cannot answer yes to all of these questions, you may want to obtain information from www.dol.gov/odep/search/siteindex.htmor www.jan.wvu.edu. Providing a comfortable, safe work environment for workers with disabilities is both humane and the law.