THE AMERICANS WITH DISABILITY ACT (ADA)
Title I of the Americans with Disabilities Act of 1990, which took effect July 26, 1992, prohibits private employers, state and local governments, employment agencies and labor unions from discriminating against qualified individuals with disabilities in job application procedures, hiring, firing, advancement, compensation, job training, and other terms, conditions and privileges of employment.
ELIGIBLE: An individual with a disability is a person who:
- 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 impairment.
DISABILITY: Means that the individual: 1) has a physical or mental impairment that substantially limits a major life activity; 2) has a record of such an impairment; or 3) is regarded as having such an impairment. Major life functions include caring for one self, performing manual tasks, walking, seeing, hearing, speaking, breathing, learning, working, sitting, standing, lifting and reaching; as well as thinking, interacting with others, and sleeping.
EMPLOYER MUST: An employer is required to make an accommodation to the known disability of a qualified applicant or employee if it would not impose an "undue hardship" on the operation of the employer's business. Undue hardship is defined as an action requiring significant difficulty or expense when considered in light of factors such as an employer's size, financial resources and the nature and structure of its operation.
An employer is not required to lower quality or production standards to make an accommodation, nor is an employer obligated to provide personal use items such as glasses or hearing aids.
While the ADA does not require employers to grant disabled employees more paid leave than non-disabled employees, it may require an employer to provide unpaid leave to a disabled individual as a reasonable accommodation designed to enable the disabled worker to carry out the essential functions of his job.
DON’T ASK: Employers may not ask job applicants about the existence, nature or severity of a disability. Applicants may be asked about their ability to perform specific job functions. A job offer may be conditioned on the results of a medical examination, but only if the examination is required for all entering employees in similar jobs. Medical examinations of employees must be job related and consistent with the employer's business needs.
ENFORCEMENT: The U.S. Equal Employment Opportunity Commission issued regulations to enforce the provisions of Title I of the ADA on July 26, 1991. The provisions originally took effect on July 26, 1992, and covered employers with 25 or more employees. On July 26, 1994, the threshold dropped to include employers with 15 or more employees.
RETURN TO WORK PROTECTION: Under the ADA, a disabled employee is entitled to return to the same job unless the employee requests more leave than allowed by the FMLA, and the employer demonstrates that holding the job open would create an undue hardship. Under those circumstances, the employer is required to identify any vacant, equivalent positions for which the employee is qualified and which the employer, without undue hardship, can hold open until the employee returns. An employer must look for a position at a lower level if an equivalent position is not available. If neither an equivalent nor lower level position can be held open until the employee returns, the employer is not required to make further accommodation.
ESSENTIAL JOB FUNCTIONS: When an employee seeks to return to work, the employers legitimate concern is whether she can perform essential job functions with or without reasonable accommodation. Essential job functions are those functions that are fundamental, not marginal, to the employee’s position. If the employee cannot perform the essential job functions with or without reasonable accommodations, the employer must attempt to identify an equivalent or lower position, which the employee can perform.
MEDICAL EXAM: An employer may request a returning employee to undergo a ?fitness for duty? medical examination, provided that this step is consistent with business necessity and is job related. The employer may request of the employee documentation of his or her disability in order to determine whether the employee is entitled to reasonable accommodation because there is a “covered disability”. If an employee desires to return to work and can do so with an accommodation, the employee has the option of paying any additional cost necessary to prevent undue hardship to the employer, thus preserving the job.
- Only after making a conditional offer of employment, may an employer ask an applicant about prior workers? compensation claims or occupational injuries or require a medical examination of the applicant. The medical examination must be limited to determining the existence and nature of prior occupational injuries, which were mentioned by the applicant.
- Then, when an offer of employment is made, the employer may require a medical examination and may condition employment on the results of the exam if all potential employees are subject to a medical exam regardless of any disability.
HEALTH INSURANCE: The employer must maintain health insurance on the same terms and coverage for the disabled employee on leave or working part-time as it provides for other employees on leave or working part time.
REINSTATED EMPLOYEES: The reasonable accommodation provisions of the ADA require employers to undertake reasonable, affirmative measures to accommodate an individual’s known disability. The concept of reasonable accommodation must be considered in determining whether a particular employee’s job is protected by the ADA.
LIGHT-DUTY: The reasonable accommodation provisions of the ADA require employers to undertake reasonable, affirmative measures to accommodate an individual's known disability. The ADA does not require an employer to institute a light-duty program to help disabled employees return to work.