Disabilities (ADA)

Authors: Patrick F. Martin, Marcy McGovern, Linda Noel and Raven A. Winters, Littler Mendelson, PC

Summary

• Title I of the Americans with Disabilities Act (ADA) prohibits discrimination against a qualified individual with a disability with respect to job application procedures, hiring, advancement, termination, compensation, job training, and other terms, conditions and privileges of employment. See Overview of Disability-Related Laws.
• Under the ADA, employers are entities that employ 15 or more individuals during a 20-week period. However, employers should consider that state laws or local ordinances that prohibit discrimination based on an individual's disability may have a lower threshold number of required employees for coverage. See ADA Employer Applicability.
• Employers are required to post notices describing the federal laws prohibiting job discrimination based on race, color, sex, national origin, religion, age, equal pay, disability and genetic information. See Required Postings Under the ADA.
• In the ADA context, an employer's job description is often consulted to provide the employer's description of which job functions are essential. In order to be able to rely on a job description, the job description should meet certain criteria. See Job Descriptions.
• Employers should provide training on some practical steps to take for those persons in their organization who are charged with facilitating and engaging in the interactive process (i.e., members of the HR team, leave coordinators, etc.). See Training.
• For purposes of the ADA, the EEOC distinguishes between conditions that are impairments and physical, psychological, environmental, cultural and economic characteristics. See Characteristics vs. Impairments.
• Once an impairment is identified, the next step in assessing whether an individual is disabled under the ADA is to determine what impact, if any, that impairment has on the individual's major life activities. An individual is not disabled unless he or she is substantially limited in one or more major life activities. See Substantially Limits.
• The ADA protects employees known to have a relationship or association with a person with a disability (persons with close familial, social or physical relationships with an individual with a disability). See Additional Groups of Persons Who May Be Protected by the ADA.
• The ADA requires employers to provide reasonable accommodations to qualified individuals with disabilities, unless doing so would cause an undue hardship on the employer's business A reasonable accommodation is a reasonable adjustment to a job or work environment that enables an individual with a disability to equally compete in the workplace and perform the essential duties of the position held or desired. See Duty to Accommodate and the Interactive Process.
• Once an employer is aware that an employee has a disability under the ADA and the disability is affecting the employee's ability to perform the essential functions of the job, the employer and employee must engage in an open-ended dialogue to determine if a reasonable accommodation exists to enable the employee to perform the essential functions of the job. See The Interactive Process.
• The interactive process requires employers and employees to communicate directly with each other to facilitate the process. One way an employer can ensure effective communication with an employee who has requested an accommodation is to promptly schedule a meet-and-confer session to discuss the employee's request. See Meet-and-Confer Sessions.
• Employers are not required to provide an accommodation that would cause an undue hardship on an employer's business. An undue hardship means the requested accommodation will cause the employer significant difficulty or expense. See Undue Hardship.
• Employers are not bound by any specific policies or procedures when engaging in the interactive process to determine whether a reasonable accommodation exists. Nevertheless, employers should develop formal policies and procedures as to the protocol that should be followed when such requests are made. See Accommodation Policies.
• An employer is permitted to make a disability-related inquiry if the inquiry is job-related and consistent with business necessity. An employer may ask questions and/or require a medical examination if it has reason to question whether an applicant or employee's ability to perform essential job functions will be impaired by a medical condition. See Job-Related/Business Necessity.
• The ADA permits employers to require an examination or inquiry when an employee wishes to return to work after an injury or illness. The examination or inquiry must, however, be job-related and consistent with business necessity. See Fitness-for-Duty Examinations.
• An employer may require that an individual not pose a direct threat as long as that qualification standard is applied to all persons who apply for and currently hold a particular job. An employer that has reason to question an employee's ability to perform the essential job functions without posing a direct threat of harm to himself or herself or to the safety of others may make disability-related inquiries and/or require that the employee submit to a medical examination. See Fitness-for-Duty Examinations.
• Under the ADA, the abuse of illegal drugs is treated differently than the abuse of alcohol. In addition, drug testing is not considered a medical examination under the ADA. See Drug Testing Is Not a Medical Examination.
• In cases of pandemics, an employer may ask an employee if he or she is experiencing symptoms related to the pandemic. For example, if the pandemic is influenza, an employer may ask if the employee is experiencing flu-related symptoms such as fever or chills and a cough or sore throat. The employer must maintain all information about the employee's illness as a confidential medical file in compliance with the ADA. See Medical Examinations and Disability-Related Inquiries During a Pandemic.
• All employers are required to remove obstacles that would eliminate or prevent applicants with disabilities from participating in recruitment activities and hiring processes in general. See Preemployment Practices Regulated by the ADA.
• When employees seek leave under the Family and Medical Leave Act (FMLA) for their own serious health conditions (as opposed to those of their parents, spouses, children, etc.), the employer must ensure that employees not only receive any leave they may be entitled to under the FMLA, but also that the employer complies with its obligations under the ADA. See ADA Interplay.
• The ADA prohibits discrimination in the workplace on the basis of an employee or a job applicant's disability. Specifically, the ADA protects a qualified individual with a disability. In considering a disparate treatment claim by an employee with a disability, courts seek to determine whether the employee with a disability was treated less favorably in similar circumstances than other employees who were not disabled. A court will seek to determine whether or not the disability actually motivated the treatment or the employer's decision. See Disparate Treatment.
• The ADA prohibits discrimination on an adverse impact theory. Under the adverse impact theory, a neutral employment practice or policy may be considered discriminatory and illegal if it has a disproportionate adverse impact on individuals with disabilities. By way of example, a policy that requires employees returning from a leave of absence to be 100% fit for duty may have a disparate impact on qualified individuals with a disability if it does not take into consideration an employee's ability to perform the essential functions of a position with or without a reasonable accommodation. See Disparate Impact.
• The ADA prohibits discrimination against employees known to have a relationship or association with an individual with a disability. See Association Discrimination.