Americans with Disabilities Act
The Americans with Disabilities Act (ADA), enacted in 1990, is the newest of the major civil rights laws, and creates many potential pitfalls for employers. The ADA bars discrimination against any "qualified individual with a disability," and requires that an employer provide "reasonable accommodation" to a disabled employee who needs such an accommodation to perform the duties of his or her position. The federal government acknowledged when it enacted the ADA that the duty of reasonable accommodation was a new burden for employers, and in an attempt to help employers adapt to their new responsibilities under the ADA, the law originally applied only to employers with twenty-five or more employees. Since 1994, however, the law has applied to any employer with at least fifteen employees.
The ADA does not include a list of illnesses or injuries that render an employee covered by the law. Instead, the law defines a disability as a "physical or mental impairment that substantially limits one or more of the major life activities" of an employee. Major life activities include seeing, hearing, speaking, breathing, learning, caring for oneself and, in some jurisdictions, working. While some disabilities, such as blindness, deafness, or paraplegia, may be obvious to the employer, many are not. Because of this, an employee who is in need of an accommodation has the burden of notifying the employer of his or her disability and asking for the necessary accommodation. The employee need not use the words "reasonable accommodation"; an employee need only notify the employer that he or she has some illness or impairment that prevents him or her from performing an essential function of the job. The employer must then enter into an interactive process with the employee to determine whether the employee is disabled, and what accommodation would be appropriate.
Reasonable accommodations can include modifying an employee's work schedule; allowing an employee to take extended unpaid leave for medical reasons or to use vacation or personal leave for medical leave; reassigning nonessential duties, such as those which the employee performs for only a few minutes a day; or installing special equipment that will assist the employee in performing his or her duties. An employer also may be required to move the employee to a vacant alternative position if the employee can perform the duties of that position. However, an employer does not need to create a new position for an employee, nor lower the performance standards of the employee's existing position in order to keep the employee in it.
Likewise, an employer does not need to adopt an accommodation that would cause the employer "undue hardship.” What is considered an undue hardship will depend on the size of the employer. For example, a large employer could be expected to allow an employee to take an extended medical leave, while a smaller employer would not. An employer is not required to hire an extra employee to perform the disabled employee's job duties, but may be required to reassign another employee to assist with selected duties, depending on the size of the employer.
Finally, an employer is required to provide a disabled job applicant with accommodations that are necessary to enable the applicant to participate in the job application and interview process. For example, an employer may be required to move the interview site to a location that the applicant can reach, and allow the applicant to bring special adaptive equipment or assistance, such as a Braille typewriter or sign language interpreter.
The ADA also prohibits an employer from discriminating against an employee or applicant on the basis of his or her disability, or because he or she has a history of a disability or is regarded as having a disability. An employer therefore may not refuse to hire someone solely on the assumption that the applicant’s physical or mental condition would render him or her unable to perform a position. Instead, if the applicant is otherwise qualified, the employer must give the applicant the opportunity to demonstrate that he or she can, with or without an accommodation, perform the duties of the position. An employer may fire an employee, if he or she can no longer perform his or her job duties and there is no reasonable accommodation that would allow the employee to perform those job duties, or if the employee poses a "direct threat" to the health or safety of others.
The ADA also bars an employer from asking job applicants for medical information. Instead, an employer must wait until the applicant has received a conditional job offer. The employer may then seek job-related medical information from the offeree, such as requiring a strength or agility test from a firefighter candidate, or testing a job candidate in the health care field for infectious diseases.
Finally, the ADA imposes certain recordkeeping requirements on employers. An employer must retain certain records for at least one year from the creation of the record or the date of the personnel action to which the record refers. These records include employee requests for accommodation, employment application forms, materials dealing with the promotion, hiring, demotion, transfer, layoff, or firing of employees, compensation issues, and the selection of employees for training and apprenticeship.
Many states have enacted laws imposing additional requirements on employers, mandating, for example, where employee medical information may be stored, and further limiting what sort of information may be requested from employees and applicants.
How Employment Law Attorneys Can Help Employers
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