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Disabilities (ADA): Federal

Disabilities (ADA) requirements by state

Author: Michelle Barrett Falconer, Littler

Summary

  • Title I of the Americans with Disabilities Act (ADA) prohibits discrimination against an 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, a 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 (e.g., members of the HR team, leave coordinators). 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 individuals with disabilities, unless the individual is not qualified for the job or 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 an Emergency.
  • 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.
  • Employers should retain employee records related to medical examinations, the interactive process, accommodations, and other important documents related to employee disabilities and the ADA. See ADA Recordkeeping.
  • When employees seek leave under the Family and Medical Leave Act (FMLA) for their own serious health conditions (as opposed to those of their parent, spouse or child), 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's or a job applicant's 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 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.

The Americans with Disabilities Act of 1990

The Americans with Disabilities Act of 1990 (ADA) was signed into law by President George H.W. Bush on July 26, 1990. The ADA generally covers four distinct areas:

  1. Employment (Title I);
  2. Public services (Title II);
  3. Public accommodations and services operated by private entities (Title III); and
  4. Telecommunications relay services (Title IV).

Title I

Title I of the ADA prohibits a private employer from discriminating against an individual with a disability with respect to job application procedures, hiring, advancement, termination, compensation, job training, and other terms, conditions and privileges of employment. Under Title I of the ADA, a covered employer has an affirmative duty to reasonably accommodate an individual with a disability who is qualified for the job he or she holds or desires.

The Job Accommodation Network (JAN), a source of free guidance on workplace accommodations and disability-related employment issues, provides Technical Assistance on Title I. For more information, see JAN's Technical Assistance Manual.

Title II

Title II of the ADA prohibits public entities, including state and local governments, from discriminating on the basis of an individual's disability. This means that public entities may not discriminate against an individual with a disability with respect to the public entity's provision of activities, programs and services.

Title II also places a duty on public entities to modify their rules, policies or practices in order to remove barriers (such as architectural, communication or transportation barriers) for individuals with disabilities and to ensure that auxiliary aids and services are provided to individuals with disabilities when necessary. For more information regarding Title II, see the Department of Justice's website.

Title III

Title III of the ADA prohibits discrimination in any place of public accommodation on the basis of disability. The scope of public accommodations includes virtually all businesses that have regular contact with the general public. Title III requires public accommodations to make reasonable modifications to their policies, practices or procedures; provide auxiliary aids and services; and remove architectural and structural barriers. Title III requires new facilities to be accessible based on the ADA regulations. For more information regarding Title III and the ADA regulations setting forth the accessibility requirements for places of public accommodation and commercial facilities, see the Department of Justice's (DOJ) website.

The issue of whether online business activities are covered by the public accommodation requirements of Title III of the ADA remains unsettled. Some courts have held that entities that have an online presence must take steps to ensure that they are accessible to individuals with a disability under the public accommodations provisions of Title III. Other courts have held that the public accommodations provisions of Title III do not apply to online activities.

The 9th Circuit, relying on similar cases from the 3rd and 6th Circuits, held that an internet-only business (i.e., a business that solely operates online and does not have a physical location open to the public) is not considered a place of public accommodation within the meaning of Title III. See Earll v. eBay, Inc., +2015 U.S. App. LEXIS 5256 (9th Cir. April 1, 2015).

In March 2016, a California state court became the first court in the nation to hold a retailer liable for having a website that was not accessible to people with vision-related disabilities. The court held that the retailer was liable under the ADA and California's Unruh Civil Rights Act because there was a sufficient connection between the company's retail store and its website that directly affects the plaintiff's ability to access goods and services. See Davis v. BMI/BND Travelware, CIVDS1504682 (Cal. Super. Ct. Mar. 21, 2016). Although this ruling is not binding on other jurisdictions, it may nonetheless leave retailers open to similar suits in the future, even before the DOJ issues regulatory guidance.

The DOJ plans to release regulations to address the requirements for website and app accessibility in 2018. An employer may review and assess the accessibility of its websites in advance of the regulations. JAN provides a host of resources for employers on this topic. It is recommended that an employer consider meeting the World Wide Web Consortium's (W3C) Web Content Accessibility Guidelines (WCAG 2.0 AA), to the extent practicable and readily achievable. The WCAG guidelines are a set of technical standards aimed at universal website accessibility, and it is anticipated that the DOJ regulations will incorporate these guidelines.

2008 Amendments to Americans with Disabilities Act of 1990

On September 25, 2008, President George W. Bush signed into law the ADA Amendments Act of 2008 (ADAAA), which amended the ADA by overturning prior interpretations of the term disability. Congress declared that prior interpretations of the definition of disability had too narrowly limited the scope of impairments that constituted disabilities under the ADA. The ADAAA calls for a more expansive interpretation of what is defined by the ADA as a disability.

Although the definition of disability under the ADAAA did not change on its face (i.e., the ADA still provides that a disability is an impairment that substantially limits a major life activity), the definitions of major life activity and substantially limits were changed considerably by the 2008 amendments. As the words have stayed the same, but the meanings have changed, an employer must exercise caution when considering case law that addresses what was considered a disability under the ADA before the 2008 amendments.

The ADAAA became effective on January 1, 2009, and is applicable only to employment decisions made on or after January 1, 2009. On May 24, 2011, the Equal Employment Opportunity Commission (EEOC) regulations interpreting the ADAAA became effective. For a thorough discussion of the definition of disability under the ADA and the EEOC's regulations, please see What Is a Disability?

Rehabilitation Act of 1973

The Rehabilitation Act of 1973 contains four substantive antidiscrimination provisions related to individuals with disabilities, which are as follows:

  1. Section 501 protects federal executive branch employees and applicants from discrimination based on their physical or mental disabilities. In addition to the antidiscrimination provision, under Section 501, federal agencies are required to create affirmative action programs for the hiring, placing and advancing of individuals with a disability. This section also requires that each agency provide reasonable accommodations to an employee or applicant with a disability who is qualified for the position he or she holds or desires.
  2. Section 503 applies to federal government contractors and subcontractors with federal contracts greater than $10,000 and requires these contractors and subcontractors to take affirmative action to employ and advance individuals with a disability. Section 503 prohibits discrimination in the terms and conditions of employment based on an employee's or applicant's status as an individual with a disability. This section also requires that the covered contractors and subcontractors provide reasonable accommodations to an employee or applicant who is an individual with a disability and who is qualified for the position he or she holds or desires. The OFCCP published a Final Rule amending the regulations that implement Section 503, which became effective on March 24, 2014. For more information on the Final Rule, please see Preemployment Practices Regulated by the ADA and the OFCCP's Side-by-Side Comparison of Changes to the Regulations.
  3. Section 504 has broad applicability as it prohibits discrimination against any individual with a disability in any program or activity receiving federal financial assistance, or any program or activity conducted by a federal agency or the US Postal Service.
  4. Section 508 requires that any electronic information that is developed, maintained or procured by the federal government be accessible to individuals with disabilities based on established accessibility standards.

Preparing for the ADA

ADA Employer Applicability

Employer Applicability - Title I of the ADA

The following types of entities are covered under Title I of the ADA:

  • Employers;
  • Employment agencies;
  • Labor organizations; and
  • Joint labor-management committees.

In order to be an employer that is a covered entity under Title I of the ADA, the entity must employ a certain number of employees for a certain amount of time.

Required Number of Employees

Under the ADA, a covered employer is an entity that employs 15 or more individuals during a 20-week period. However, an employer 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 State Requirements.

When determining whether an employer is a covered entity under Title I of the ADA, a few basic considerations apply:

  • When calculating the number of persons employed, an entity must count all employees on its payroll, including part-time employees and its agents, i.e., those persons who work for the entity as a manager, supervisor or foreperson and others who act for or on behalf of the employer.
  • Independent contractors are generally not considered employees and do not count toward the determination of the number of employees under the ADA.
  • Whether a shareholder/director is counted toward the required number of employees is generally dependent on the degree of control exercised by the entity over that person, and courts have used various standards and factors that apply to this analysis.
  • It is possible to aggregate the employees of two or more closely interrelated entities into a single employer in order to satisfy the minimum number of employees.
  • Courts disagree as to whether the workforces of joint employers may be aggregated to establish the ADA's number of employees requirement.

Because the law varies in certain jurisdictions with regard to some of the considerations listed above, it is recommended that if an employer's workforce is close to the 15-employee threshold, the employer should consult with legal counsel before making a conclusion as to whether it is a covered entity under Title I of the ADA.

Number of Calendar Weeks

The 20-week period under the ADA (during which time at least 15 individuals must be working for the entity) includes 20 or more calendar weeks in the current or preceding calendar year.

Employer Applicability - Title II of the ADA

In addition to the potential applicability of Title I of the ADA to state and local government entities that meet the Title I threshold requirements, state and local government entities, regardless of size, are covered by Title II of the ADA. See Overview of Disability-Related Laws.

Employer Applicability - Title III of the ADA

A private entity that is open to the public at large will generally be deemed to be a public accommodation under Title III of the ADA. The 12 common categories of entities that fall under the ADA's public accommodations provision include the following:

  1. An inn, hotel, motel or other place of lodging, except for an establishment located within a building that contains not more than five rooms for rent or hire, and that is actually occupied by the proprietor of such establishment as the residence of such proprietor;
  2. A restaurant, bar or other establishment serving food or drink;
  3. A motion picture house, theater, concert hall, stadium or other place of exhibition or entertainment;
  4. An auditorium, convention center, lecture hall or other place of public gathering;
  5. A bakery, grocery store, clothing store, hardware store, shopping center or other sales or rental establishment;
  6. A laundromat, dry cleaner, bank, barber shop, beauty shop, travel service, shoe repair service, funeral parlor, gas station, office of an accountant or lawyer, pharmacy, insurance office, professional office of a health care provider, hospital or other service establishment;
  7. A terminal, depot or other station used for specific public transportation;
  8. A museum, library, gallery or other place of public display or collection;
  9. A park, zoo, amusement park or other place of recreation;
  10. A nursery, elementary, secondary, undergraduate or postgraduate private school, or other place of education;
  11. A day care center, senior citizen center, homeless shelter, food bank, adoption agency or other social service center establishment; and
  12. A gymnasium, health spa, bowling alley, golf course or other place of exercise or recreation.

It is helpful to note that any area within a public accommodation that is off-limits to the general public is not a place of public accommodation, and that area need not comply with the public accommodation requirements of Title III. Although such areas need not comply with Title III's requirements, an entity that is a covered entity under Title I, however, would still have accessibility obligations to its employees under Title I.

Private clubs and religious organizations, including vehicles used by such entities, are exempt from Title III's requirements.

Employer Applicability - Rehabilitation Act of 1973

The Rehabilitation Act of 1973 applies to federal employers and federal contractors. For a discussion of the Rehabilitation Act of 1973 and its related provisions, see Overview of Disability-Related Laws.

Preliminary Considerations for Employers Under Title I of the ADA

It is important for a covered employer to note that with the passage of the ADAAA, far more people will fall within the ADA's definition of disability. As a consequence, an employer should consider these practical steps:

  • Ensure the required poster is displayed in locations that can be easily seen by applicants and employees;
  • Review all policies, programs and practices to ensure they track the purpose and language of the amended ADA;
  • Review job descriptions for their accuracy;
  • Review qualification standards to make sure they are job-related and consistent with business necessity; and
  • Train HR professionals, front-line managers and supervisors (or any employee who makes decisions about accommodations) on the ADA, with a focus on the interactive process.

Required Postings Under the ADA

A covered employer is 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. The EEOC developed a consolidated poster titled "Equal Employment Opportunity Is the Law", which includes most of the federal equal employment opportunity laws, such as the ADA.

A covered employer must post this poster in prominent and accessible places on its premises where it can readily be seen by employees, applicants and union members. An employer with multiple locations should post the notice in each location. The poster is available in various languages. See also Employee Management > EEO - Discrimination > Equal Employment Opportunity Commission.

A fine may be imposed for failure to post the required notice.

Most state disability laws have notice posting requirements as well. See State Workplace Labor and Employment Law Posters.

Employer's Policies Relating to the ADA

Reasonable Accommodations Policies

Though it is recommended that an employer address disability discrimination and ADA requirements within an antidiscrimination or equal employment opportunity (EEO) policy, an employer may find it prudent to include a separate reasonable accommodation policy in addition to the EEO policy to highlight the employer's compliance with the reasonable accommodation obligations set forth under the ADA and similar state laws.

Under the ADA, the interactive process requires a dialogue and exchange of information between an employer and employee in connection with efforts to reasonably accommodate the employee's limitations. Having a policy in place that alerts employees to the employer's willingness to engage in the interactive process and consider reasonable accommodations is recommended.

A reasonable accommodations policy should identify individuals to whom an employee may take a request for a reasonable accommodation. The policy may also expressly provide that an employee will not be retaliated against for requesting a reasonable accommodation. See Reasonable Accommodation Policy; Disability Accommodation Handbook Statement. When formulating a reasonable accommodation policy, an employer should take into consideration key concepts and practical steps as outlined in Duty to Accommodate and the Interactive Process.

Leave or Attendance Policies

The EEOC's guidance on employer-provided leave in light of the ADA makes it clear that employees requesting leave for reasons related to a disability should be treated the same as employees who request leave for reasons not related to a disability. Furthermore, even if an employer does not offer leave as an employee benefit, or a particular employee is ineligible for leave or has exhausted his or her leave, the employer must consider providing unpaid leave as a reasonable accommodation to employees with disabilities. However, an employer is not required to grant additional leave or unpaid leave beyond what its policy requires if doing so would impose an undue hardship on its operations or finances

"No fault" leave or attendance policies, whereby an employee is automatically terminated after being on leave for a certain period of time, can run afoul of the ADA's protections when the policies and practices of the employer do not incorporate an interactive process to assess whether an additional, finite leave may be a reasonable accommodation under the ADA. The EEOC has targeted several employers challenging leave policies that made no exceptions for additional leave as a reasonable accommodation. See 4.85 Million Reasons Why Employers Should Revisit Inflexible Leave and 100% Healed Policies.

To the extent that an employer has such a policy, it may need to be modified to incorporate steps to assess whether an individual with a disability should be afforded additional leave as a reasonable accommodation. When an employee on leave is nearing his or her scheduled return date under such a policy, the employer should communicate with the employee to see whether he or she needs any additional unpaid leave as a reasonable accommodation for a disability.

When an employee requests leave as a reasonable accommodation, the employer may grant the leave outright if it would come within one of the employer's established leave programs, such as paid sick leave, FMLA or another type of leave offered by the employer. However, if the employer's established leave policies would not be applicable, the employer should engage the employee in the interactive process to determine how much leave is needed and under what conditions. The employer can request information from the employee's health care provider to assist it in the process.

Return-to-Work Policies

In their handling of an employee's return to work from a medical leave, some employers require employees to be 100 percent fit before they can return to work. Strict adherence to any such policy can run afoul of the ADA's protections and may also have a disparate impact on individuals with a disability (e.g., employers that do not take into consideration an employee's ability to perform the essential functions of the job with accommodations, such as additional leave under the ADA, worksite accommodations or work schedule modification, before rejecting the employee's return to work likely violate the ADA).

Therefore, an employer should engage in the interactive process on a case-by-case basis when an employee makes a request to return to work. See ADA Interplay; Medical Examinations/Inquiries. When an employee returns to work with restrictions in place from his or her doctor, the employer should communicate with the employee and doctor in order to determine what accommodations may be made to allow the employee to perform the essential functions of his or her job. This may include a temporary or permanent reassignment. The EEOC takes the position that if reassignment is required, an employer must place the employee in a vacant position for which he or she is qualified, without requiring the employee to compete with other applicants for open positions.

An employer may also consult the EEOC's Revised Enforcement Guidance: Reasonable Accommodation and Undue Hardship Under the Americans with Disabilities Act. See also How to Handle an Employee Returning From FMLA Leave Who May Need an ADA Accommodation.

Practical Example

Luna, a pharmacist at Acme Hospital, used 12 weeks of FMLA leave caring for her newborn son. Later that same year, she needed surgery to treat her disability. Even though Acme Hospital did not have a policy to provide additional leave beyond the 12 weeks of FMLA leave, it engaged in the interactive process with Luna and granted her an additional four weeks of unpaid leave for her recovery. A week before Luna was scheduled to return to work following her surgery, Acme Hospital contacted her to see if she would be able to return on the scheduled date.

Practical Example

Following extensive surgery to treat her disability, which required four months of recovery, Katie was scheduled to return to work at Acme Car Depot on September 1. However, Katie suffered several setbacks during her recovery and was unable to return on September 1. Her doctor was not able to determine when she would be able to work again or whether she would be able to work at all in the future. After discussing the situation with Katie and her doctor and conducting an in-house evaluation of its needs, Acme Car Depot determined that it would be an undue hardship to provide indefinite leave to Katie and terminated her position.

Practical Example

Troy, a librarian, returns to work after a four-week leave to treat his disability. He has a lifting restriction of 20 pounds for the first three months after he returns. Although lifting over 20 pounds is an essential function of his job, the library accommodates Troy by reassigning him to another position that does not require lifting until he is cleared to lift over 20 pounds again.

Employer's Documents and Programs

Job Descriptions

In the ADA context, a job description is often consulted to provide the employer's position on which job functions are essential. In order to be able to rely on a job description, the job description should meet certain criteria. Specifically:

  • The duties listed as "essential" must, in fact, be essential job functions; and
  • The job description must have been created before the employer advertises or interviews applicants for the job.

From a practical perspective, it is imperative that job descriptions and advertisements for positions be carefully reviewed to ensure that essential job functions and qualifications for positions are accurate. See Preemployment Practices Regulated by the ADA; Prepare a Job Description.

An employer may establish certain minimum job requirements that applicants must be able to meet in order to be qualified for a position that they are seeking. These minimum job requirements can be based on any number of criteria, such as:

  • Educational level;
  • Work experience;
  • Skills;
  • Expertise;
  • Licenses; and
  • Physical and mental standards necessary for job performance, health and safety.

See Preemployment Practices Regulated by the ADA.

Applications

An employer may use a job application to show that:

  • It treated all applicants similarly during the hiring process;
  • The questions posed were not likely to elicit a disability-related response; and
  • The language of the question is relevant to the job and consistent with business necessity.

See also Determine What to Include in an Application Form.

However, an employer must keep in mind that employment applications can also serve as evidence of a preemployment disability inquiry in a discriminatory hiring practices claim. Thus, an employer should be mindful of the questions that it poses on its applications. The following are examples of some things an employer should not ask on an employment application:

  • Identify which ailments an applicant has;
  • List the applicant's physical defects;
  • Ask an applicant whether he or she has a specific condition; or
  • Ask about an applicant's medical history, prior compensable workplace injuries or illnesses, or current treatment with prescription medications.

See Conduct Effective Job Interviews.

Wellness Programs

The ADA allows an employer to conduct voluntary medical examinations and activities that are part of a company wellness program without having to show that they are job-related and consistent with business necessity. These programs often include blood pressure screening, cholesterol testing, glaucoma testing and cancer detection screening. An employee may be asked disability-related questions and may be given medical examinations pursuant to such wellness programs. However, the wellness program must be voluntary, meaning that the employer neither requires participation nor penalizes employees who do not participate. Any health risk assessment or biometric screening provided as part of a wellness program may not be used as a pre-condition for participation in the employer's group health insurance plan. An employer may, however, offer incentives for individuals to participate in wellness programs.

While these programs are often beneficial to employers and employees alike, an employer wishing to implement a wellness program must ensure that participation in the program does not inadvertently violate an employee's medical privacy rights. To maintain a wellness program that is HIPAA-, GINA- and ADA-compliant, an employer should adhere to the following:

  • All medical records acquired as part of the wellness program must be kept confidential and separate from personnel records;
  • Any medical information collected from an employee as part of the wellness program may not be used to discriminate against the employee; and
  • The employee must provide prior, informed, voluntary and written acknowledgment of the information that will be obtained, the purpose for its use and any restrictions on its disclosure.

Further, an employer must ensure that wellness programs are not implemented in ways that discriminate against employees with disabilities. For example, an employer may not require that an employee with a disability secure a physician's approval to participate in the program, if employees without disabilities are not also subject to the same requirement.

To the extent that an employer sponsors a wellness program, it should consult with any third-party providers that may assist in the program to ensure that their practices are compliant with the foregoing requirements. See also Employee Wellness.

Final regulations that can help employers keep their wellness programs ADA-compliant were issued in May 2016. See Future Developments.

Training

With respect to the ADA, HR professionals, front-line managers and supervisors should receive training, similar to that provided under Title VII, regarding the ADA's prohibitions on disability-based discrimination and harassment. See Employee Management > Training and Development. Similarly, HR professionals and others who may be tasked with investigating harassment complaints, including disability-related harassment, should be trained on proper investigation procedures and protocols. See Employee Management > EEO - Harassment.

Supervisors and front-line mangers should also be trained to evaluate the job performance of an employee with a disability the same way they evaluate any other employee's performance - without regard to the disability or any reasonable accommodation requested or provided. This training may include recognizing when an employee's disability is contributing to a performance problem - and when a reasonable accommodation may eliminate the difficulty. For more information relating to performance appraisals, see Employee Management >Performance Appraisals.

Unique to the ADA, however, HR professionals, front-line managers, supervisors and any other individuals who may be involved in the interactive and reasonable accommodation process should receive proper training on these requirements of the ADA. An employer should periodically train all of these individuals on the ADA's key concepts, such as:

  • The scope of the ADA's coverage;
  • What situations may implicate the ADA;
  • Disability discrimination and disability-related harassment are prohibited under the ADA;
  • The obligation to provide reasonable accommodations under the ADA;
  • Requests for accommodations may be made at any time;
  • Legal words (e.g., "reasonable accommodation," the "Americans with Disabilities Act") are not necessary to request an accommodation;
  • The request for a reasonable accommodation can be written or oral;
  • Recognizing who in the employer's organization is responsible for the interactive process with the employee (i.e., under its policies, has the employer designated someone in HR to handle the interactive process in all situations?);
  • Other people may seek an accommodation for the employee;
  • Retaliation is prohibited (in relation to a request for a reasonable accommodation as well as in relation to an internal or agency-filed complaint of disability-related discrimination or harassment); and
  • There is an ongoing duty to accommodate.

See ADA: An Overview - Supervisor Briefing; ADA: Managing an Employee With a Disability - Supervisor Briefing.

In addition, an employer should provide training on some practical steps to take for those persons in the organization who are charged with facilitating and engaging in the interactive process (e.g., members of the HR team, leave coordinators), such as:

  • Acknowledging accommodation requests in writing;
  • Securing the employee's execution of an appropriate medical release;
  • Addressing what information to, or not to, request from employees;
  • Providing an employee's health care provider with information identifying the employee's essential job functions;
  • Maintaining confidentiality of all medical information received;
  • Timely scheduling a meet-and-confer session (or sessions) with the employee; and
  • Documenting the meet-and-confer session in a confirmation letter notifying the employee of the employer's decision regarding the reasonable accommodation or the employer's need for additional information from the employee regarding the request.

See Duty to Accommodate and the Interactive Process.

What Is a Disability?

A person can assert that he or she is disabled under the ADA under any of the following bases:

  1. A physical or mental impairment that substantially limits one or more of the major life activities of [an] individual (actual disability);
  2. A record of such an impairment; or
  3. Being regarded as having such an impairment. +42 U.S.C §12102(1)(A)-(C) .

See How to Determine if an Employee Is Disabled.

The definition of disability under the ADA is precise and should not be confused with the definition of disability as may be used in other types of laws, such as workers' compensation laws or other federal and state laws that provide benefits for individuals with disabilities or veterans with disabilities. See ADA Interplay.

An employer, including supervisors and managers, should be careful not to make generalized assumptions about whether an individual has an impairment that rises to the level of disability; rather, they should approach each situation on a case-by-case basis.

Background on Impairments Under the ADA

Physical Impairment

A physical impairment is broadly defined under the ADA and encompasses a wide range of conditions and illnesses, including any physiological disorder or condition, cosmetic disfigurement, or anatomical loss affecting one or more body systems, such as neurological, musculoskeletal, special sense organs, respiratory (including speech organs), cardiovascular, reproductive, digestive, genitourinary, immune, circulatory, hemic, lymphatic, skin and endocrine. +29 C.F.R. § 1630.2 (h)(1).

For example, all of the following conditions are considered physical impairments under the ADA:

  • Blindness, because it is a condition that affects the body's ability to see;
  • Emphysema, because it is a condition that impact's the ability to breathe; and
  • Human immunodeficiency virus (HIV) infection, because it is a condition that attacks the body's immune system.

The EEOC offers guidance on Helping Patients with HIV Infection Who Need Accommodations at Work for employees and employers with regard to individuals living with HIV infection. The guidance reiterates that employers are prohibited from discriminating against or harassing individuals based on the fact than an individual is living with the HIV infection or related conditions and that such individuals have a right to reasonable accommodations in the workplace. For more information on this guidance see EEO - Discrimination: Federal.

Mental Impairment

A mental impairment is broadly defined under the ADA and encompasses a wide range of conditions and illnesses, including any mental or psychological disorder, intellectual disability (formerly termed "mental retardation"), organic brain syndrome, emotional or mental illness, and specific learning disabilities. +29 C.F.R. § 1630.2 (h)(2).

For example, all of the following conditions are considered mental impairments under the ADA:

  • Schizophrenia, because it is a disorder that manifests itself as a mental illness;
  • Dyslexia, because it impacts an individual's ability to read, and learning disabilities are mental impairments; and
  • Bipolar disorder, because it is a disorder that manifests itself as a mental illness.
Characteristics vs. Impairments

For purposes of the ADA, the EEOC distinguishes between conditions that are impairments and physical, psychological, environmental, cultural and economic characteristics. Under the ADA, an impairment does not include physical characteristics such as eye color; hair color; left-handedness; or height, weight or muscle tone that are within the normal range and are not the result of a physiological disorder. The definition of impairment also excludes personality traits such as poor judgment or a quick temper where these are not symptoms of a mental disorder. Environmental, cultural or economic disadvantages such as poverty, lack of education or having a prison record are also not impairments.

Practical Example

Jason has a short fuse and no underlying mental conditions. After being disciplined by his supervisor, Jason yells at the supervisor to "go to he*l." Jason is terminated from his employment based on his statement. Jason will not likely be able to show that he is disabled under the ADA, in part, because his statement and quick temper do not constitute a mental impairment under the ADA.

Practical Example

John has Tourette syndrome, which causes him to blurt out inappropriate comments at times. While walking past his boss after a meeting with his colleagues, he says in a loud tone, "Go to he*l." John is terminated because of the statement. Because the statement was a result of his Tourette syndrome, John may be able to establish that he has a mental impairment under the ADA.

Record of Impairment

In addition to persons who suffer from actual disabilities, a person who has a record of impairment can also be protected under the ADA. +29 C.F.R. § 1630.2 (g)(2).

The EEOC defines a record of such an impairment as meaning that the individual has a history of, or has been misclassified as having, a mental or physical impairment that substantially limits one or more major life activities. +29 C.F.R. § 1630.2 (k).

History of Mental or Physical Impairment

The record of impairment provisions protect individuals who have recovered from actual disabilities. For example, a person who recovered from heart disease or cancer is protected under the ADA well after he or she has fully recovered from the condition. However, before an employer can be held liable for discriminating against a person with a record of an impairment, it must have had knowledge of those records. If no one involved in the decision to terminate an individual's employment had access to that person's medical records, it will be difficult to show that the decision was made on the basis of those records.

Misclassified as Having a Mental or Physical Impairment

The record of impairment provisions also protect people who have been misclassified or misdiagnosed as having a mental or emotional illness. They also protect individuals with a record of past drug addiction - for example, a record of an individual's stay at a rehabilitation clinic. However, information about an individual's recreational or current drug use would not likely constitute a record of impairment. Nor do records relating to an individual's receipt of Social Security disability insurance necessarily establish that an individual will qualify for protection under the ADA. See ADA Interplay; Drug Testing Is Not a Medical Examination.

Duty to Accommodate - Record of Disability

The duty to accommodate extends to individuals with a record of disability. An example of such a possible accommodation is a schedule change that would allow an individual to attend follow-up medical appointments.

Regarded as Having a Disability

Under the ADAAA, a person is regarded as having an impairment if he or she has been subjected to discrimination because of an actual or perceived physical or mental impairment, whether or not the physical or mental impairment or perceived impairment limits or is perceived to limit a major life activity. +42 U.S.C. § 12102(3)(A).

Thus, an employee may be protected under the ADA, even if the employee is not actually disabled, based on an employer's treating or regarding the employee as if he or she has an impairment. Again, it does not matter whether the employer perceives the impairment as one that substantially limits a major life activity. For this reason, it is important for employers to train their workforces on the scope and requirements of the ADA, emphasizing, in part, that gossip or presumptions regarding an employee's medical conditions and/or disabilities can form the basis of a regarded as claim.

The following are some potential examples of individuals protected under the regarded as definition of disability:

  • Refusing to hire an applicant with skin graft scars;
  • Demoting an individual with angina;
  • Suspending an individual with suicidal tendencies;
  • Demoting an individual who talks to herself in the office; or
  • Terminating an individual with a hand wound that the employer mistakenly believes to be a condition of HIV infection.

See DOJ's Questions and Answers on the ADA and Persons with HIV/AIDS; EEOC Publication: Helping Patients with HIV Infection Who Need Accommodations at Work.

Practical Example

Julia, an employee of Acme Cosmetics, was hospitalized for several weeks when she was badly burned by her domestic partner. Julia has facial scarring from skin grafts, which were needed to heal the burn. When Julia returned to work, her co-workers constantly ridiculed her and made abusive comments about the skin graft scars. Julia's manager failed to stop the abuse and eventually fired her because he thought she was "diseased." Although Julia may not actually be disabled, her manager's employment decision may violate the regarded as definition of disability under the ADA.

Exclusion for Impairments That Are Transitory and Minor

The only limitation imposed on the regarded as definition of disability is that the ADAAA specifically excludes those impairments that are transitory and minor (i.e., an impairment with an actual or expected duration of fewer than six months). +29 C.F.R. § 1630.2 (g)(1)(iii).

No Duty to Accommodate - Regarded as Disabled

The ADAAA clarifies that an employer's duty to accommodate does not extend to individuals who are merely seeking protection under the regarded as definition of disability (i.e., those who are not actually disabled).

It should be noted that the EEOC encourages individuals to proceed under the simpler regarded as protection in any case of disability discrimination not involving an employer's alleged failure to provide reasonable accommodation. +29 C.F.R. § 1630.2 (g)(3). It is important for an employer to recognize that if an individual is treated adversely (in job applications, hiring, advancement, discharge, compensation, job training or other terms and conditions of employment) because of an actual or perceived impairment that is not transitory and minor, that person may seek legal recourse under the regarded as protections of the ADA.

Actual Disability

Once an employee establishes that he or she has a physical or mental impairment (see Physical Impairment; Mental Impairment) to establish an actual disability, he or she must then show that the impairment substantially limits a major life activity. The meaning of each of these terms is addressed in detail below.

Substantially Limits

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.

The ADAAA was enacted to specifically reject the prior strict interpretations of the ADA that defined disability to be an impairment that prevents or severely restricts an individual from doing activities that are of central importance to one's daily life. Although the ADAAA did not change on its face (i.e., the ADA still provides that a disability is an impairment that substantially limits a major life activity), the definitions of major life activity and substantially limits were changed considerably by the 2008 amendments.

For purposes of assessing whether something qualifies as substantially limiting, the EEOC provides nine rules of construction in the regulations under the ADA as follows:

1. The term substantially limits is to be broadly construed, meaning that it is not a demanding standard.

Based on this rule of construction, the clear intent of the law is to make it easier for individuals with disabilities to obtain protection under the ADA.

2. Not requiring an impairment to pose a significant or severe restriction on a major life activity, but rather to limit the ability of an individual to perform a major life activity as compared with most people in the general population.

Under this rule of construction, multiple impairments that combine to substantially limit one or more of an individual's major life activities also constitute a disability.

3. Not requiring an extensive analysis of substantial limitations, but focusing instead on whether covered entities comply with their obligations.

Based on this rule of construction, HR professionals should not emphasize whether an individual has a disability as defined by the ADA, but should instead focus on the interactive process and the employer's duty to accommodate.

4. Still requiring an individualized assessment, but with a lower standard than previously applied.

Although an individualized assessment is still required, the degree of functional limitation is currently lower than the standard that was applied prior to the enactment of the ADAAA. And although the EEOC maintains the principle of individualized assessments in its regulations, the EEOC provided a list of predictable assessments that will nearly always amount to disabilities. See Predictable Assessments.

5. Not requiring scientific, medical or statistical analysis when comparing an individual's performance of a major life activity with that of most people in the general population.

Although this type of evidence is not required to assert that someone's impairment substantially limits him or her, an individual is not prohibited from presenting scientific, medical or statistical evidence in support of a disability determination under the ADA when appropriate.

6. Not considering the ameliorative effects of mitigating measures (other than ordinary eyeglasses or contact lenses), but considering limitations relating to side effects of mitigating measures.

The ADAAA expressly rejected the Supreme Court decisions holding that mitigating measures must be considered when evaluating whether one has a disability. Thus, impairments must be analyzed in their unmitigated state, and an individual who, because of the use of a mitigating measure, has experienced no or only minor limitations related to the impairment, may still be an individual with a disability where there is evidence that in the absence of an effective mitigating measure, the individual's impairment would be substantially limiting. For example:

  • An individual with muscular dystrophy who has adapted how he performs manual tasks must be evaluated without those adaptations.
  • An individual with diabetes who creates a careful regimen of medicine, exercise and diet must be evaluated by the impact of the uncontrolled diabetes.
  • An individual with a learning disability must be evaluated without considering the impact of self-accommodations that allow him to read and achieve academic success.
  • An individual with clinical depression must be evaluated without the impact of the medication that has allowed him to successfully manage the condition for 15 years.
  • An individual with a hearing impairment must be evaluated without the impact of a hearing aid that helps correct that impairment.

Examples of the types of mitigating measures that are not to be considered when assessing whether someone is disabled include:

  • Medications;
  • Medical supplies, equipment or appliances;
  • Low-vision devices (defined as devices that magnify, enhance or otherwise augment a visual image, but not including ordinary eyeglasses or contact lenses);
  • Prosthetics including limbs and devices;
  • Hearing aid and cochlear implant or other implantable hearing devices;
  • Mobility devices;
  • Oxygen therapy equipment and supplies;
  • Use of assistive technology;
  • Reasonable accommodations or "auxiliary aids or services" (as defined by +42 U.S.C. § 12103(1) );
  • Learned behavioral or adaptive neurological modifications; or
  • Psychotherapy, behavioral therapy or physical therapy.

+29 C.F.R. § 1630.2 (j)(5).

Job coaches, service animals and personal assistants might also be considered mitigating measures under certain circumstances.

For individuals who choose to forgo mitigating measures, the availability of such measures has no bearing on whether the impairment substantially limits a major life activity. The negative effects of mitigating measures can be considered when determining whether an impairment is substantially limiting. The use or nonuse of mitigating measures, and the resulting effects from their use, however, can determine whether the individual is qualified or poses a direct threat to safety.

7. Treating an impairment that is episodic or in remission as a disability if it substantially limits a major life activity when active.

This applies to a broad range of episodic conditions, conditions with flare ups and conditions that may be temporarily cured. Examples of episodic conditions include epilepsy, post-traumatic stress disorder, cancer, multiple sclerosis, hypertension, diabetes, asthma, bipolar disorder, major depressive disorder and schizophrenia.

Under the ADAAA, the fact that an episode may be brief or occur infrequently is no longer relevant when determining whether the impairment substantially limits a major life activity. Thus, an evaluation of this type of impairment should focus on its manifestations when active or when the condition flares up. The ADAAA does not expressly require any degree of frequency, and the EEOC rejects any bright-line test of when an impairment is a qualifying disability.

Practical Example

Wanda has been in remission from breast cancer for three months. Wanda is disabled because her breast cancer limited major life activities when it was active.

Practical Example

Kathleen has seizures that she controls with medication. Because her seizures substantially limit major life activities, she is considered disabled even when she is not suffering from a seizure.

8. Requiring only one major life activity to be substantially limited in order to establish a disability.

This rule of construction is intended to reject pre-ADAAA court rulings. For example, a pre-ADAAA court held that an individual with cerebral palsy who could not perform certain manual tasks independently was not disabled because she was not substantially limited in her ability to perform a "broad range" of manual tasks. Today, this case would likely be decided differently. Under the ADAAA, if one is substantially limited in a single major life activity, that individual need not also show limitations in the ability to perform activities of central importance to daily life.

Practical Example

Ryan has a 20-pound lifting restriction as a result of a bulging disc in his back. Under the ADAAA, Ryan is substantially limited in the major life activity of lifting and, therefore, he does not need to also show that he cannot perform other activities of daily life that require lifting in order to show that he is disabled under the ADA.

9. The effects of an impairment lasting fewer than six months may still be "substantially limiting" in evaluating whether one has an actual disability.

Temporary, nonchronic impairments that have little or no long-term impact, such as broken limbs, sprained joints, concussions, appendicitis, minor and nonchronic gastrointestinal disorders, the common cold, pneumonia and influenza, were not generally viewed as disabilities prior to the ADAAA. However, post-ADAAA, these conditions can possibly qualify for disability protection if the residual impact of the temporary impairment (even with mitigating measures) would result in the substantial limitation of a major life activity. For example, an improperly healed broken leg, resulting in a permanent limp, might be considered a disability.

It is risky for an employer to conclusively classify a condition as temporary before the employee has provided proper medical documentation. And regardless of whether the condition is temporary, an employer may have overlapping obligations under the federal Family and Medical Leave Act (FMLA) and applicable state laws. See ADA Interplay.

In the first appellate level decision to apply the ADAAA's expanded definition of disability, the 4th Circuit Court of Appeals held that a sufficiently severe temporary impairment may constitute a disability. See Summers v. Altarum Institute Corp., +2014 U.S. App. LEXIS 1252 (4th Cir. 2014). In Summers, a senior analyst suffered a severe injury to his legs that was expected to immobilize him for around seven months. The employer fired the analyst. The court decided that:

  • The severe nature of the employee's injury, though temporary, was enough to render him disabled within the meaning of the ADAAA;
  • The employer should have worked with the employee to find accommodations that would allow him to continue working; and
  • The employer should have assessed whether the employee would be able perform major life activities without taking into consideration mitigating factors (e.g., whether the employee could work in a wheelchair) or what treatments the employee had undergone for the injury.

This decision shows that courts are bound to follow the inclusive determination of disability under the ADAAA and that an employer should err on the side of caution in assessing whether an employee is disabled and needs an accommodation. For more background on Summers, please see Short-Term Impairments May Be a Disability, Federal Court Finds.

The result of the EEOC's nine rules of construction and the ADAAA overall, plus the federal courts' application of those law and regulations, is that more persons are likely to be considered as having a disability under the ADA. Accordingly, when evaluating whether an employee has a disability under the ADA, an employer should consider having its employment counsel walk it through the regulations and analysis.

Major Life Activities

An individual is not disabled unless he or she is substantially limited in one or more major life activities.

Following the ADAAA's rejection of prior case law on the subject, the EEOC stated in its regulations that it is no longer necessary to show that a major life activity "be of 'central importance to most people's daily lives.'" +29 C.F.R. § 1630.2 (i)(2). Instead, the EEOC defines major life activities as those activities "that most people in the general population can perform with little or no difficulty." The ADAAA amended the definition of major life activities to include, without limitation:

  • Caring for oneself;
  • Performing manual tasks;
  • Seeing;
  • Hearing;
  • Eating;
  • Sleeping;
  • Walking;
  • Standing;
  • Lifting;
  • Bending;
  • Speaking;
  • Breathing;
  • Learning;
  • Reading;
  • Concentrating;
  • Thinking;
  • Communicating; and
  • Working.

+42 U.S.C § 12102(2)(A) .

The EEOC regulations also expand the statutory list of major life activities to include:

  • Sitting;
  • Reaching; and
  • Interacting with others.

The definition of major life activities also includes the "operation of a major bodily function[s]," including, without limitation:

  • The functions of the immune system;
  • Normal cell growth;
  • Digestive;
  • Bowel;
  • Bladder;
  • Neurological;
  • Brain;
  • Respiratory;
  • Circulatory;
  • Endocrine; and
  • Reproductive functions.

+42 U.S.C § 12102(2)(B).

The EEOC regulations expand the list of major bodily functions to include:

  • The functioning of special sense organs and skin;
  • The genitourinary system;
  • The cardiovascular system;
  • The hemic system:
  • The lymphatic system; and
  • The musculoskeletal system.

Predictable Assessments

While still clinging to the principle that disability determinations should be done on an individualized basis, the EEOC explained in its final regulations implementing the ADAAA that some types of impairments will, in virtually all cases, result in a finding that the impairment substantially limits a major life activity. Thus the necessary individualized assessment of these types of impairments should be particularly simple and straightforward. +76 Fed. Reg. 16,981 (Mar. 25, 2011).

The EEOC's regulations provide the following examples:

  • Deafness substantially limits hearing;
  • Blindness substantially limits seeing;
  • An intellectual disability substantially limits brain function;
  • Partially or completely missing limbs or mobility impairments requiring the use of a wheelchair substantially limit musculoskeletal function;
  • Autism substantially limits brain function;
  • Cancer substantially limits normal cell growth;
  • Cerebral palsy substantially limits brain function;
  • Diabetes substantially limits endocrine function;
  • Epilepsy substantially limits neurological function;
  • HIV infection substantially limits immune function;
  • Muscular dystrophy substantially limits neurological function; and
  • Major depressive disorder, bipolar disorder, post-traumatic stress disorder, obsessive compulsive disorder and schizophrenia substantially limit brain function.

+29 C.F.R. § 1630.2 (i)(3)(iii).

See also EEOC Publication: Helping Patients with HIV Infection Who Need Accommodations at Work.

The EEOC's preamble to the regulations also hinted that the following impairments may also be regularly found to be qualifying disabilities:

  • Asthma;
  • High blood pressure;
  • Learning disabilities;
  • Back or leg impairments;
  • Panic disorder;
  • Anxiety disorder;
  • Carpal tunnel syndrome; and
  • Hyperthyroidism.

+76 Fed. Reg. 16,984 (March 25, 2011).

Practical Example

Mary Lou has asthma. When she is exposed to substances such as cleaning products, perfumes or cigarette smoke, she is substantially limited in her respiratory functions. Under the current ADA, she is likely disabled. Under the pre-ADAAA version of the ADA, however, she would not likely have been considered disabled.

Individual With a Disability and Qualified Individual

To be protected by the ADA, a person must not only have a disability that substantially limits one of life's major activities, but he or she also must be qualified for the position in question. The EEOC eliminated the term qualified individual with a disability from the ADA's regulations and Interpretive Guidance. Consistent with the ADAAA, the regulations refer to an individual with a disability and a qualified individual as separate terms. The EEOC also prohibits discrimination on the basis of disability rather than against a qualified individual with a disability because of the disability of such individual. The regulations reflect changes made by the ADAAA itself, which are intended to make the primary focus of an ADA inquiry whether discrimination occurred, not whether an individual meets the definition of disability. An individual must still establish that he or she is qualified for the job in question. +29 C.F.R. § 1630.4.

An individual with a disability is qualified for a job if he or she has the skill, experience, education and other job-related requirements (or prerequisites) of the position and who, with or without reasonable accommodation, can perform the essential functions of the position. +29 C.F.R. § 1630.2.

In order to be qualified under the ADA:

  • First, the individual must meet the necessary prerequisites for the job; and
  • Second, if the individual meets all of the job prerequisites except for those that he or she cannot meet because of a disability, the employer must determine whether a reasonable accommodation would permit the individual to perform the essential job functions.
Job Prerequisites

Job prerequisites can include:

  • Education;
  • Work experience;
  • Training;
  • Skills;
  • Licenses;
  • Certificates; and
  • Other job-related requirements.

Practical Example

Jodie, a licensed certified public accountant, is applying for an accountant position with Acme Accounting. Jodie has cerebral palsy. Because Jodie has her license, she may be qualified for the certified public accountant position (if she were not a licensed accountant, then she would not be qualified for the position).

Although Jodie is a licensed accountant, she cannot type her own reports because of her condition. Therefore, Acme Accounting must consider whether the ability to type is an essential function of the job and whether Jodie can perform that function with reasonable accommodation. If the ability to type is not an essential function of the job, or if Jodie can perform that function with reasonable accommodation (by dictating the reports, for example), then Jodie would be qualified for the position.

An employer must notify job applicants and current employees of its obligation to provide accommodations to qualified individuals with disabilities and must post notices containing the ADA's provisions. Information about the reasonable accommodation obligation should also be included in application forms, job vacancy notices and personnel manuals. See Preparing for the ADA.

Essential Functions of the Job

In order to determine whether an individual with a disability is qualified for a job, the essential functions of that job must be identified. The essential functions of a job are the fundamental job duties of the employment position (i.e., a job function is essential if the job exists to perform that function). For example, for a position as a proofreader, the ability to proofread documents accurately is an essential function because that is the reason the position exists.

A job function may be essential because of the limited number of employees available to perform the function or among whom the function can be distributed. For example, it may be an essential function for a file clerk to answer the telephone if there are only three employees in a busy office and each employee has to perform many different tasks, including answering the telephone.

A job function may also be essential if removing that function would fundamentally change the nature of the job. For example, the ability to work nights is an essential job function of a third-shift position. By its very nature, a third-shift position necessitates late-night work.

Factors or documents to be considered when evaluating whether a job function is essential to the position include:

  • A written job description;
  • A collective bargaining agreement;
  • Government standards;
  • The work experience of those currently performing similar jobs;
  • The work experience of employees who have performed the job in the past;
  • The nature of the work operation;
  • The employer's organizational structure; and
  • The amount of time spent performing the function.

Although evidence that an employee spends most of his or her time in a certain function is indicative that the function is essential to the position, a job duty that is performed infrequently may be essential if there are serious consequences when that function is not performed. For example, a firefighter may only occasionally have to carry a person from a burning building, but the inability to perform this task could have drastic - even fatal - consequences.

An employer has the right to define its job positions and the functions that are required to perform those jobs without lowering its standards. Individuals with disabilities may be held to the same performance criteria as other employees, provided those criteria are job-related and consistent with business necessity, and the employee is afforded the opportunity to meet the employer's performance standards by reasonable accommodations. The ADA does not require an employer to make any modification, adjustment or change in a job if it can demonstrate that the change would fundamentally alter the essential functions of the job in question.

It is highly recommended that an employer develop job descriptions before seeking to fill a position because written job descriptions will be considered as strong evidence in determining a job's essential functions. See Recruiting and Hiring > Job Analysis and Documentation. However, if individuals currently performing the job do not, in fact, perform functions listed as essential in the written job description or perform them infrequently, a review of the actual work performed by those filling the position will have greater weight than the job description. Therefore, it is important that the written job description accurately reflects the actual functions of the job. It is also important that written job descriptions be maintained and periodically re-evaluated to ensure their continued accuracy. Disputes over whether one is a qualified individual with a disability are likely to become a far greater focus in the aftermath of the ADAAA.

Some examples of common essential job functions include:

  • Predictable and regular attendance;
  • Working overtime;
  • Working nights;
  • The ability to work cooperatively with others;
  • The ability to deal politely with members of the public;
  • The ability to juggle several tasks at once;
  • The ability to arrive at work on time;
  • The ability to work onsite;
  • The ability to work in a stressful atmosphere;
  • The ability to type 75 words per minute;
  • The ability to lift a certain amount of weight; and
  • The ability to speak a certain language.

See also How to Determine Essential Job Tasks.

Conditions Excluded from the Definition of Disabled

The ADA specifically excludes the following conditions or practices from the definition of disability:

  • Homosexuality;
  • Bisexuality;
  • Transvestism;
  • Transsexualism;
  • Pedophilia;
  • Exhibitionism;
  • Voyeurism;
  • Gender identity disorders not resulting from physical impairments;
  • Compulsive gambling;
  • Kleptomania;
  • Pyromania;
  • Psychoactive substance use disorders resulting from current illegal use of drugs;
  • A normal pregnancy without any complications; and
  • Environmental, cultural and economic disadvantages.

+29 C.F.R. § 1630.3.

Although the ADA specifically excludes a normal pregnancy from the definition of disability, federal law does protect against pregnancy discrimination in employment and a number of states and certain municipalities have separate laws covering pregnancy under which employers may be required to provide an accommodation, leave and reinstatement. But see ADA Interplay. See also Employee Management > EEO - Discrimination > Pregnancy - Pregnancy Discrimination Act.

Although addiction can be a disability under the ADA, a qualified individual with a disability does not include anyone engaging in the current illegal use of drugs or prohibited use of alcohol. +29 C.F.R. § 1630.2 (g)(3). See Drug Testing Is Not a Medical Examination. Thus, only past drug addiction is protected under the ADA. Drug abuse is current if the individual's drug activity is periodic or ongoing and has not yet permanently ended, even if the employee is participating in a rehabilitation program or is drug free at the time of the employment action. For a full discussion of the topic of drug and alcohol use as it relates to the ADA, see Drug Testing Is Not a Medical Examination. See also How to Handle Employees Who Have Drug and Alcohol Issues.

Note that the use of medical marijuana, which is protected in several states, may be indicative of a medical condition that rises to the level of a disability. While medical marijuana laws do not impact an employer's ability to maintain a drug-free workplace policy, the employer should exercise caution in dealing with employees who are registered medical marijuana users and ensure that such employees are afforded reasonable accommodations where necessary due to the underlying medical condition that gave rise to the need for medical marijuana.

Additional Groups of Persons Who May Be Protected by the ADA

Employees With a Relationship or Association With an Individual With a Disability

The ADA also 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). +42 U.S.C. § 12112(b)(4). For example, it would be unlawful for an employer to terminate an employee because the employee associates with or is related to a person with AIDS. Similarly, employers are forbidden from making employment decisions based on assumptions that an employee will miss work in order to care for a person with a disability.

Although an employer may not discriminate against an employee or applicant based on association with an individual with a disability, an employer is not required to provide a reasonable accommodation on that basis. For example, an employer is not obligated to accommodate absences or requests for different shifts caused by caring for an individual with a disability. Such employees may, however, be protected under the FMLA or state statutes protecting employees with caregiving responsibilities. See Employee Leaves > FMLA; Employee Management > EEO - Discrimination.

Applicants

Unlike other individual characteristics such as race, sex and age, one's disability is not always readily apparent. Just as employers are counseled not to inquire as to an applicant's race, sex or age, the ADA prohibits an employer from making certain inquiries and conducting medical examinations before making an offer of employment. However, a job offer may be conditioned upon successful completion of a medical examination. An individual is protected under the ADA against a pre-hire medical inquiry regardless of whether the individual is disabled within the meaning of the law. For a full discussion of preemployment practices regulated by the ADA, see Medical Examinations/Inquiries.

Contingent Workers as Employees

According to the EEOC, both staffing firms and their clients have joint responsibilities under the ADA to contingent workers. See No Finger Pointing: Staffing Firms and their Clients Can Both Get Sued for Disability Discrimination under the ADA. See also How to Manage Contingent or Temporary Workers.

An employment relationship is not established by a staffing firm's offer to place an individual on its roster for possible consideration in the future for temporary work assignments. An offer occurs when a staffing firm worker is given a particular assignment. Therefore, a violation of the ADA can occur if an individual is asked disability-related questions or is required to undergo a medical examination before a specific assignment is made. For a full discussion regarding requests for medical information, see Medical Examinations/Inquiries.

Independent Contractors

At least one federal appellate court has clearly stated that the protections of the ADA do not extend to independent contractors. However, it should be noted that some courts have interpreted the Rehabilitation Act to allow independent contractors to assert disability claims against employers receiving federal funds. For a full discussion of when individuals can be deemed independent contractors, see Employee Compensation > Independent Contractors.

Duty to Accommodate and the Interactive Process

The ADA requires an employer to provide reasonable accommodations to individuals with disabilities, unless the individual is not qualified for the job or 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 Evaluating Accommodations.

An employer's duty to make reasonable accommodations extends to all employment decisions, and it applies to job applicants and to full- and part-time employees. Thus, an employer must consider reasonable accommodations, when necessary, regarding:

  • The application and interview process;
  • Reasonable modifications to a job (e.g., work environment or circumstances under which the job is performed);
  • On-the-job training;
  • Third-party training;
  • Employer-sponsored social activities; and
  • The utilization of employer-provided benefits or services (e.g., cafeterias, gyms, transportation) not strictly related to the ability to perform the job.

Practical Example

Jacob applies for a position with Acme Corporation and is selected to proceed to the next step in the process - a telephone screening interview with an HR professional. Jacob emails the HR professional and requests an in-person screening interview because he has a hearing impairment and is concerned about his ability to hear the questions over the telephone. An in-person interview would allow him to read the interviewer's lips and accurately answer the questions. Acme Corporation should grant Jacob's request as a form of accommodation. See Recruiting and Hiring > Interviewing and Selecting Job Candidates.

Practical Example

Terry works as a data entry clerk, which requires him to look at a computer screen all day. Terry develops a vision impairment and requests a larger computer screen so that he can more easily monitor whether he is accurately making his entries. Terry's employer should provide the larger screen as a form of reasonable accommodation, providing it does not present an undue hardship for the employer.

Practical Example

Acme Sales Corporation has monthly interactive training meetings for its sales associates to inform the associates about new developments in the field and provide information regarding marketing tools that can be used to develop new business. Tim works as a sales associate, but he is deaf and cannot actively participate in the meeting without assistance. As an accommodation, Acme Sales Corporation provides a sign language interpreter at these meetings so that Tim can actively participate just as the other sales associates do.

An employer should take its obligation to provide a reasonable accommodation very seriously. An employer that fails to provide reasonable accommodations may subject itself to lawsuits under the ADA, or the state law equivalent, which can be time consuming and expensive to defend against. If an employee's lawsuit is successful, the employer may be required to pay monetary awards to the employee for lost wages and emotional suffering, or the employer may be required to reinstate the employee with the necessary accommodations.

Duty to Accommodate

The mere fact that an individual has a disability does not automatically entitle him or her to a job accommodation. Rather, the ADA only requires an employer to provide reasonable accommodations to individuals with disabilities who are qualified for the job. An individual with a disability is qualified if he or she meets the skill, experience, education and other job-related requirements of the position and can perform the essential functions of the position, with or without reasonable accommodation. Thus, to determine whether an individual with a disability is qualified, an employer must first ask whether the individual satisfies the prerequisites for the position.

Practical Example

James teaches at a public high school and suffers from Parkinson's disease. The principal of the school resigns, and James applies for the open position. State law requires principals to have a master's degree and a school administrator license. James does not have a master's degree or a school administrator license. James is not qualified for the position.

Not Qualified if Direct Threat to Health and Safety of Self or Others

An employer may require, as a qualification standard, that employees not pose a direct threat to the health or safety of themselves or other individuals. An employee is a direct threat if he or she poses a significant risk to the health or safety of themselves or others and that risk cannot be eliminated by a reasonable accommodation. How to Deal With an Employee Who Is a "Direct Threat" to Self or Others. An employer should base its determination of whether an employee poses a direct threat upon an individualized assessment of the employee's present ability to safely perform the essential functions of the job.

An employer should rely on the most current medical knowledge and/or the best available objective evidence to determine whether an employee is a direct threat. An employer may rely upon the following types of evidence:

  • Input from the individual with a disability;
  • The individual's experiences in similar jobs; and/or
  • Opinions of medical doctors, rehabilitation counselors and/or physical therapists with expertise in the disability involved and/or direct knowledge of the individual with the disability.

An employer must be prepared to show that, at the time the determination was made, it considered:

  • The duration of the risk;
  • The nature and severity of the potential harm;
  • The likelihood that the potential harm would occur; and
  • The imminence of potential harm.

The risk must be current, not speculative or remote. In that regard, an employer cannot rely upon subjective perceptions, irrational fears or stereotypes when assessing these factors. Some jobs may require analysis of the impact of state and federal safety regulations on a person's ability to safely perform the essential functions of a job position. For example, employers of truck drivers are subject to federal transportation regulations, manufacturing employers must be able to meet stringent federal Occupational Safety and Health Administration (OSHA) requirements, and restaurant employers must comply with Federal Drug Administration (FDA) food handling regulations.

Since an employer should consider several factors before concluding that an employee poses a direct threat, the employer should also be sure to document its analysis as proof that each factor was considered before concluding that an employee posed a direct threat. An employer should be sure to include a detailed analysis of each factor and the facts or circumstances that support the conclusion.

Practical Example

Sue is a truck driver who transports goods across the country. During one of Sue's trips, she passes out and crashes into a ditch. Sue did not injure herself or anyone else. When Sue's employer questions her about the incident, Sue reveals that she was recently diagnosed with a seizure disorder that causes her to pass out without warning, and that one of her seizures had caused the accident. Sue's employer seeks information from Sue's physician regarding her condition and how it will affect her ability to safely perform her duties. Sue's physician confirms that Sue has a seizure disorder, she is unable to predict when a seizure will occur or control the seizure once it occurs, and she could very well injure herself or others if she were to continue working in her current position. Unless there is a reasonable accommodation available that alleviates the significant risk posed by Sue's condition, Sue likely poses a direct threat to herself or others.

Practical Example

Mark has been working at a restaurant for the last year as a cook. As a part of his duties, Mark has to cook on a gas flat-top grill, use a deep fryer filled with hot grease, and use slicing machines. During a casual conversation, Mark reveals to his supervisor that he has a fainting disorder, but his medication completely controls the disorder. Mark's supervisor is surprised to learn about Mark's condition since Mark has worked at the restaurant for the last year without any incidents. Nevertheless, Mark's supervisor terminates Mark the next day due to the safety concerns posed by Mark's fainting disorder. Mark's supervisor did not engage in the individualized assessment required by the ADA and has likely subjected the restaurant to liability under the ADA.

The ability to handle stress appropriately and interact with others can be an essential function of a job. Thus, an employee with a mental disorder may not be a qualified individual if he or she is unable to manage stress and interpersonal conflict. This may rise to the level of a direct threat in some circumstances, such as where serious and credible threats of violence are made. In comparison, off-handed expressions of frustration, inappropriate jokes or a rude, gruff demeanor generally do not render an employee as not qualified.

Practical Example

Kevin, who suffers from a major depressive disorder, works as a welder at Acme manufacturing plant. For many years, his disorder was managed through treatment and medication, and he worked well and without incident. After an incident of workplace bullying, Kevin complained to management, but felt his complaints were not taken seriously. Shortly thereafter, Kevin made explicit threats on several occasions to various co-workers, saying that he felt like coming to work with a shotgun and blowing off all the supervisors' heads. After an investigation by senior management and HR personnel, Kevin was suspended from work and briefly hospitalized. Although he was later cleared to return to work, Acme terminated Kevin on the grounds that it could not guarantee that Kevin would not exhibit further dangerous behavior or ultimately follow through with his threats. Acme correctly determined that Kevin was a direct threat to others and that no accommodation was available to him.

See also Handle an Employee With Mental Health Problems.

Essential Functions of the Job and the Duty to Accommodate

If an employee meets all of the prerequisites or requirements of the position, but cannot perform an essential function of the position due to a disability, the employer should explore whether a reasonable accommodation will allow the employee to perform those duties. +29 C.F.R. § 1630.2(o).

Practical Example

Lisa applies for a registered nurse position on a cardiac unit. The position requires at least five years of cardiac experience and a current nursing license. Lisa meets those qualifications and is offered the position. Lisa suffers from carpel tunnel syndrome, which limits her ability to write and type. One of the essential functions of the nursing position is the ability to maintain records regarding patients. The hospital should explore whether there are any reasonable accommodations that will allow Lisa to perform these duties, such as purchasing a digital tape recorder and writing aids to assist Lisa in maintaining patient records.

The essential functions of a position are the fundamental job duties of the position. Not every function of a job is essential. A job duty is essential if the job exists to perform that duty. For instance, the ability to proofread documents accurately is an essential function of a proofreader position because that is the reason the position exists.

Additionally, a job duty may be essential if there are a limited number of employees available among whom the performance of that job duty can be distributed and/or the job duty is highly specialized so that the individual in the position is hired for his or her expertise or ability to perform the particular function. A position's marginal duties are not considered essential.

An employer should examine the following factors to determine if a job duty is essential:

  • Are employees in the desired or held position actually required to perform the duty?
  • Would removing the duty fundamentally alter the position?
  • What is the degree of expertise or skill required to perform the duty?
  • What does the written job description say about the duty?
  • What does the collective bargaining agreement, if any, say about the duty?
  • Are there any consequences of failing to require the employee to perform the duty?
  • How much time is spent performing the duty?
  • What is the employer's judgment as to what the essential duties are?
  • What is the work experience of employees who have performed the job in the past?
  • What is the work experience of employees who are currently performing similar jobs?

See also Determine Essential Job Tasks.

When Is an Accommodation Needed?

Employee's Duty to Inform

An employer is not expected to accommodate disabilities of which it is not aware. Therefore, individuals with disabilities must inform their employers that an accommodation is needed. Notwithstanding the employees' duty to inform, an employer can be found to be on notice that an accommodation is necessary if an employee's disability and accommodation needs are obvious.

Practical Example

Kim works as a patient care associate at Acme Hospital. Acme Hospital's attendance policy provides for termination after an employee has accumulated 12 tardies in a rolling six-month period. Kim is terminated after she accumulates 12 tardies in a rolling six-month period. Kim is often late due to her depression, although she has never informed anyone at Acme Hospital of her diagnosis and its limitations on her. Acme Hospital has likely not violated the ADA because Kim has never informed anyone of her depression and its limitations on her, and Acme Hospital had no reason to know that Kim's depression was affecting her ability to report to work in a timely manner.

Practical Example

Jim works as a file clerk, which requires him to climb a ladder to retrieve and store files. Jim is paralyzed after a skiing accident and returns to work in a wheelchair. Now that Jim is in a wheelchair, it is obvious that he will not be able to climb a ladder to retrieve and store files. Jim and his employer should now explore whether there is a reasonable accommodation available to assist Jim with performing his job.

Form of Employee's Request

A request for an accommodation can be made by an employee or an employee's representative. The request does not have to include the words "reasonable accommodation" or any other special terms. The request also does not have to be in writing. All an employee has to do is state, whether orally or in writing, that he or she needs an adjustment or change in the work environment for a reason related to a physical or mental impairment.

For example, the following requests would be considered sufficient:

  • An employee provides a doctor's note that indicates he has a lifting restriction that prevents him from doing his job without assistance;
  • An employee tells her supervisor that she needs a couple of weeks off to undergo cancer treatment;
  • An employee tells his supervisor that his vision impairment is preventing him from seeing his small computer screen; or
  • An employee tells her supervisor that she needs to take some time off to get treatment for her knee problem.

Practical Example

Joe tells his manager that he needs a new keyboard for his computer because he has difficulty typing on the one he currently has. Although this is a request for a change at work, the statement is insufficient to put the employer on notice that Joe is requesting an accommodation because he does not link his need for the new keyboard to a medical condition.

For more examples of requests that may or may not be sufficient, an employer can look to the EEOC's website for enforcement guidance on reasonable accommodations.

An employer should keep the following points in mind when a request for a work change is received:

  • Be cautious. If there is any doubt as to whether an employee has requested an accommodation, the employer should ask him or her to clarify what is being requested and why.
  • Respond quickly. When a request for an accommodation is made, the employer should respond as soon as possible. Unnecessary delays can violate the ADA.
  • Delegate responsibility. The employer should ensure someone is tasked with the responsibility of evaluating and responding to the accommodation request so that it is handled in a timely manner.
  • Provide training. Since supervisors and managers generally deal with employees on a frequent basis, they should be trained on how to recognize a request for an accommodation and the procedure that should be followed once a request is received.

Is the Employee Disabled?

Once an employer is on notice of an accommodation request, it should evaluate whether the individual has a disability under the ADA. See What Is a Disability? This is because an employer's obligation to provide an accommodation only extends to employees who actually have a disability. Thus, at this stage of the analysis, an employer should not suggest or admit that an employee is entitled to the protections of the ADA until such a determination is actually made.

When considering whether an employee is disabled for purposes of the ADA, an employer should be reminded that with the passing of the ADAAA, the definition of who is disabled under the law has been expanded considerably. How to Determine if an Employee Is Disabled. Therefore, HR professionals engaged in interactive and reasonable accommodation processes should not place too much of an emphasis on the initial inquiry of whether someone is disabled.

Requesting Medical Information

When an employee's disability or need for an accommodation is not obvious, the employer may request medical information. See Medical Examinations/Inquiries. Such requests, however, should be limited to:

  • Information necessary to determine whether the employee has a qualifying disability under the ADA;
  • Information about the limitations that the disability poses on the employee's ability to perform the essential functions of his or her job;
  • Information regarding whether or not an employee may pose a direct threat of danger to themselves or others; and
  • Information regarding the types of accommodations that may allow the individual to perform the essential functions of the job (e.g., to justify a leave of absence request).

The Interactive Process

Once an employer is aware that an employee has a disability under the ADA and the disability is impacting 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. How to Engage in and Properly Document the Interactive Process Under the ADA.

This interactive process envisions effective on-going communication between the employer and an employee with a disability and the exchange of information in connection with the effort to reasonably accommodate the employee. Both parties must participate in good faith and in a timely manner. See Ongoing Duty to Provide A Reasonable Accommodation; Exercise Good-Faith Approach.

An employer should be diligent to document the entire process, including its efforts to interact with the employee. See Documentation of the Interactive Process.

When the Process Should Begin and End?

The interactive process should begin promptly once an employer receives notice that an employee with a disability is having difficulty performing his or her job because of a physical or mental impairment that may constitute a disability under the ADA. This notice can come from the employee or from someone who requests an accommodation on the employee's behalf. From that point forward, the parties should proceed promptly and reasonably to a resolution.

There are no strict guidelines as to when the interactive process should end. However, it generally ends when one of the following occurs:

  • The employee with a disability refuses to cooperate; or
  • There is no reasonable accommodation available.

An employer should be careful to explore all alternative options for accommodations prior to making a determination that no reasonable accommodation is available. Additionally, an employer should have adequate documentation to support that conclusion. See Documentation of the Interactive Process.

Who Should Be Involved in the Interactive Process?

The interactive process should be a collaborative effort between the employer and employee with a disability. Thus, in addition to the employee, the other relevant participants should be the HR manager, the employee's supervisor and other members of the management team with knowledge of the employee's job duties. Who participates in this process may change due to the ongoing nature of the process. For example, if the employee is unable to provide adequate information regarding his or her disability, then the employee's physician may become a part of the process so that the employer can gain a better understanding of the employee's needs. Moreover, an employer's policies and practices may dictate who participates in the interactive process and when.

Employee's Role in the Interactive Process

An employee with a disability is obligated to notify his or her employer of the need for an accommodation. Although an employee with a disability is not required to specify a particular accommodation, he or she is required to provide information regarding his or her disability and the limitations posed by the disability. An employee must also fully cooperate in the interactive process in a timely and responsible manner. See Employee's Duty to Inform.

Employer's Role in the Interactive Process

An employer should initiate the interactive process promptly after receiving notice that an employee needs an accommodation. The process should identify the employee's precise limitations and the effectiveness of any potential reasonable accommodations in overcoming those limitations.

An employer should communicate with an employee to learn about his or her disability and the limitations it poses on his or her ability to perform the essential functions of his or her job. This necessarily requires the employer to:

  • Review the employee's job functions to determine which functions are essential;
  • Discuss with the employee possible options for an effective job accommodation; and
  • Explore an employee's recommended accommodation. If it is not reasonable or is otherwise unfeasible, the employer should look into whether there are any alternative accommodations that can help the employee perform the essential functions of the job.

Meet-and-Confer Sessions

The interactive process requires an employer and an employee 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.

Prior to a meet-and-confer session, an employer should consider the following:

  • What are the essential functions of the employee's position?
  • Is the employee able to perform the essential functions of his or her job without any accommodation?
  • Is the employee able to perform the essential functions of his or her job with reasonable accommodation?
  • If a reasonable accommodation is needed, can the requested accommodation be provided? Would a different accommodation be better or less expensive?
  • Is there any additional information that is needed from the employee prior to making the determination of whether the requested, or another, accommodation can be offered?
  • If the employee cannot perform the essential functions of his or her job even with accommodation, can the employee be reassigned to a suitable, vacant, equivalent alternative position?
  • If a suitable, vacant, equivalent alternative position is not available, is a suitable, vacant, lower-level position available?
  • Would a leave of absence be appropriate? If so, the employer should bring all of the necessary paperwork for FMLA or other company leaves to the meeting.

The session should be held in a private place so other employees are not aware that it is being held and inadvertently overhear any discussions about the requesting employee's impairments. To the extent the employer does not have all of the information needed to evaluate the employee's request, the employer can use the session as an opportunity to learn more about the limitations that the disability imposes on the employee's ability to perform the essential functions of his or her job and/or to request medical information. The employer can also use the session to find out if the employee has any recommendations for an effective accommodation. For example, an employer can ask the employee to:

  • Describe the nature of the employee's medical condition and any functional limitations that impact the employee's ability to perform the job (i.e., this is to assess if the employee is disabled under the ADA's definition);
  • Describe what job functions are impacted by the impairment - including providing medical information if necessary; and
  • Define what reasonable accommodation the employee thinks will assist him or her in the performance of the job.

An employer should also explain the accommodation process to the employee and encourage the employee to fully cooperate during the process. If an employee is uncooperative, an employer should further explain that cooperation is essential, and if an employee does not cooperate he or she can be viewed as not having acted in good faith. An employer should also take thorough notes during the session. See Documentation of the Interactive Process.

If an employee cannot meet at the time that is convenient for the employer, the employer should agree to a reasonable request for additional time to meet and document that request. Following the meet-and-confer session, an employer should also send a letter to an employee confirming what was discussed during the meeting, including:

  • When the employee initially contacted the employer;
  • The date and time of the meet-and-confer session;
  • The substance of the conversation;
  • An acknowledgement of the request for accommodation; and
  • Reiteration of any requests for medical documentation.

Evaluating Accommodations

After an employer has engaged in the meet-and-confer process and has all the information it needs regarding the employee's disability and the limitations the disability poses on the employee's ability to perform the essential duties of his or her job, the employer should begin exploring accommodation options. A good starting point in this process is for an employer to ask the employee whether he or she has any suggestions for an effective accommodation. An employer should also offer suggestions for reasonable accommodations to the employee.

After the employer has a few suggestions, it should explore the effectiveness of all potential accommodations to determine which ones will enable the employee to perform the essential functions of the position. An employer should evaluate every request for an accommodation on a case-by-case basis, taking into consideration:

  • The employer's resources;
  • The employee's abilities;
  • The functional requirements of the job; and
  • The employee's functional limitations.

+29 C.F.R. § 1630.2(o).

Practical Example

A customer service representative suffers from incontinence and, as a result, requests to work from home. To properly evaluate this request, the employer should first identify the position's essential functions, along with the accommodation request to work from home. Things the employer should consider include: its ability to supervise the employee adequately; whether any duties require use of certain equipment or tools that cannot be replicated at home; whether there is a need for face-to-face interaction and coordination of work with other employees; whether in-person interaction with outside colleagues, clients or customers is necessary; and whether the position in question requires the employee to have immediate access to documents or other information located only in the workplace.

When multiple effective accommodations exist, an employer should consider the preference of the individual and select the accommodation that best serves the needs of the individual and the employer. Notwithstanding those considerations, an employer is allowed to choose among effective accommodations, and may choose one that is less expensive or easier to provide. See Reasonableness of Employee's Accommodation Request. An employer's final response to an employee's request for a reasonable accommodation should be communicated to the employee in writing.

An employer should keep the following tips in mind when evaluating potential accommodations:

  • Be flexible. Accommodations are about finding ways to help overcome disability-related limitations. Thus, an employer should keep an open mind when exploring accommodation options.
  • Understand that accommodations do not need to be costly. Sometimes an accommodation may be something as easy as allowing an employee to have instructions tape recorded or allowing an employee to wear ear phones so he or she is not distracted by noise in the work area.
  • Consider the employee's preference. Although an employer is not required to provide an employee with his or her preferred accommodation, an employer should still consider doing so.
  • Consider a trial period. If an employer is not sure whether a particular accommodation will be effective, it should consider trying out the accommodation before ruling it out.

Practical Example

Tim works as a materials handler for Acme Manufacturing, an appliance manufacturer. Tim tells his supervisor that due to a recent shoulder injury, he is having trouble lifting the bags of materials from a storage shelf and carrying them to the assembly line to be added to the appliances. Tim's supervisor informs an HR professional, and the HR professional sends Tim a letter to schedule a meeting to discuss his shoulder injury and its limitations on his ability to perform his job. Because Tim's injury and its limitations are not obvious, the letter requests that Tim provide medical documentation of his injury and its limitations. Prior to the meeting, the HR professional and supervisor review the essential functions of the position and conclude that the essential functions of the position require Tim to deliver the materials to the assembly line.

At the meeting, Tim provides medical documentation that he cannot lift or carry bags of materials that weigh more than 25 pounds. Since none of the bags of materials weigh less than 25 pounds, Tim needs an accommodation to perform the essential functions of his job. The HR professional asks Tim to offer suggestions as to an accommodation that might enable him to do so, and Tim suggests that he be given a forklift to lift and carry the bags of materials to the assembly line.

Acme is able to confirm that Tim has all of the licensing required to operate a forklift and that there is forklift available for Tim to use. However, Tim will need additional training since Acme uses a different forklift than it did when Tim last operated one. The HR professional offers Tim the forklift and the training as an accommodation. Tim accepts the accommodation and is able to successfully perform his job duties with the accommodation.

Reasonableness of Employee's Accommodation Request

The ADA defines a reasonable accommodation as any accommodation the employer can adopt without undue hardship that will enable the employee to perform the essential functions of the job. A reasonable accommodation is an adjustment to the work environment that puts individuals with disabilities on equal footing with individuals without disabilities in similar circumstances. +29 C.F.R. § 1630.2(o). See How to Assess Whether an Employee's Request for Accommodation Is Reasonable.

An employer should evaluate each accommodation request on a case-by-case basis and take into account the following steps:

  • Evaluate the purpose of the job and its essential functions;
  • Ascertain the employee's limitations in performing the essential job functions; and
  • Identify accommodations that would effectively enable the employee to perform the essential functions of the job.

In addition, when engaging in the interactive process with an employee, an employer should not limit the discussion to accommodations that are related to an employee's job functions. The employer should also discuss accommodations that make the workplace, workspace and premises accessible for that employee. The 5th Circuit has held that a reasonable accommodation is not necessarily required to relate to the employee's essential job duties. Under the ADA, a reasonable accommodation may also be necessary to make existing facilities used by employees readily accessible to and usable by individuals with disabilities. 42 U.S.C. § 12111(9)(A); Feist v. State of Louisiana, +2013 U.S. App. LEXIS 19133 (5th Cir. Sept. 16, 2013); 5th Circuit Expands ADA Protections for Employees.

Examples of Reasonable Accommodations

Discussed below are examples of certain types of reasonable accommodations:

Application Process

An employer is required to provide appropriate changes and adjustments to enable individuals with disabilities to compete for a job opening. An employer cannot refuse to consider applicants with disabilities because they require a reasonable accommodation to apply for a job. Reasonable accommodations that may be needed during the hiring process include (but are not limited to):

  • Providing written materials in accessible formats, such as large print, Braille or audiotape;
  • Providing readers or sign language interpreters;
  • Ensuring that recruitment, interviews, tests and other components of the application process are held in accessible locations;
  • Providing or modifying equipment or devices; and
  • Adjusting or modifying application policies and procedures.

An employer that solicits applications online through its website should ensure that the website meets accessibility standards.

Practical Example

Jesse wears a hearing aid and applies for a job as a customer service representative. Jesse can perform the job with a special headset that fits over his hearing aid. If the employer wishes to have Jesse demonstrate his ability to perform the job as a part of the application process, it must provide the appropriate headset as a reasonable accommodation.

Practical Example

An employer requires job applicants to line up outside its facility to apply for a job, a process that could take several hours. Michael has multiple sclerosis and is unable to stand in line for an extended period of time. Michael requests that he be allowed to wait indoors where he can sit down until the HR department is ready to take his application. The employer must modify its application procedure to accommodate Michael.

Leave

A common accommodation provided to employees with disabilities is to allow them to use accrued paid leave or to provide them with additional unpaid leave. All accommodation determinations require a case-by-case analysis, and the application of "no-fault" leave policies by which employees are automatically terminated after being on leave beyond a specific period of time may fail to consider the facts of each individual case (i.e., whether the individual needs a definite amount of leave time past the policy as a reasonable accommodation) and can therefore run afoul of the ADA. The facts of a particular case may instead dictate allowing an employee to take additional leave as a reasonable accommodation. See How to Handle an Employee's Request for Leave as an Accommodation.

However, not all requests for leave are reasonable. Factors that may make such requests unreasonable include:

  • Failure to provide a return-to-work date;
  • Erratic and unexplained absences;
  • The employee was hired to complete a specific task; or
  • Requests for indefinite leave.

Employees can generally expect to return to their position upon their return to work from leave unless an employer can show that keeping the position open would result in an undue hardship, and, even then, the employer should consider transferring the returning employee to a vacant position for which the employee is qualified with benefits and compensation similar to his or her former position, if possible.

Additionally, because leave for a disability may also implicate FMLA leave requirements, an employer should have an understanding of the interplay between the ADA and FMLA. See ADA Interplay.

Job Restructuring

Modifying a job so that an employee with a disability can perform the essential functions of the position is a possible reasonable accommodation. Some reasonable modifications to a job could include: eliminating nonessential elements of the job; reassignment of nonessential tasks; exchanging assignments with other employees; and redesigning procedures. However, an employer need not reallocate the essential functions of the position or require co-workers to assist the employee with a disability to do his or her job.

Modified or Part-Time Schedule

Allowing an employee with a disability to work a modified or part-time schedule can be another form of a reasonable accommodation. When an employee informs the employer that a disability may cause unplanned absences from work, the employer must engage in the interactive process with the employee. Examples of schedule modifications include adjusting an employee's arrival or departure times, providing the employee with periodic breaks or allowing the use of paid time off. On the other hand, depending on the particular job, an employer may be able to show that such modifications are not reasonable when, for example, modifying one employee's work hours prevents other employees from performing their jobs or when doing so significantly disrupts the operations of the employer. An employer may also show that full-time work or punctuality is an essential function of the job.

Work at Home

A request to work at home (commonly referred to as telecommuting) can be a reasonable accommodation, and an employer must evaluate it as a possible option. This is particularly true when the employer has a history of allowing other employees to occasionally work out of their homes. However, some situations can make such requests unreasonable when, for example, the job requires teamwork under supervision that cannot be replaced with unsupervised work at home. An employer may also be able to show in-person attendance is an essential function of the job. See also EEOC's Guidance: Work At Home/Telework as a Reasonable Accommodation.

In 2014, a 6th Circuit Court of Appeals panel agreed with the EEOC's post-ADAAA generous approach to the types of reasonable accommodations available to assist employees with disabilities to perform the essential functions of their jobs. The court disagreed with the employer's contention that regular, in-person attendance was an essential function of the employee's job, which involved frequent in-person problem-solving sessions, business meetings and interaction with suppliers. The court found that current technology enables many employees to fully perform their job duties through telecommuting arrangements. See EEOC v. Ford Motor Company +2014 U.S. App. LEXIS 7502 (6th Cir. April 22, 2014).

However, upon rehearing by the full 6th Circuit, the court reversed its prior ruling and found in favor of the employer. The court held that regular and predictable attendance is an essential job function and that courts should defer to an employer's judgment about when a job position requires physical attendance. The court further found that the existence of an employer policy permitting some job positions to telecommute does not mandate that telecommuting must be offered as an accommodation for all job positions. Jobs involving teamwork and frequent face-to-face interaction will likely be found to require physical attendance as an essential function. See EEOC v. Ford Motor Co., +2015 U.S. App. LEXIS 5813 (6th Cir. April 10, 2015) (en banc).

While the Ford decision only directly impacts employers with operations in the 6th Circuit (i.e., Kentucky, Michigan, Ohio and Tennessee), all employers should continue to be cautious in designating in-person attendance as an essential job function. If an employer wants to require an employee's physical presence in the workplace, it should be prepared to justify and explain:

  • The unreasonableness of a telecommuting request (which will depend upon the job requirements, written job descriptions and day-to-day realities of the position); and
  • Why physical presence in the workplace is indeed essential to the particular job.

If an employer has a telecommuting policy, it should let each employee use it to its full extent and should carefully review the policy with experienced employment counsel. In evaluating options for reasonable accommodations, an employer should always do an individualized assessment of each case to determine whether telecommuting could be a reasonable accommodation. Moreover, despite the favorable ruling in Ford, an employer should also expect that more employees (especially those with office jobs where the disability is an anxiety disorder, a physical disability making commuting challenging or a recovery from a major illness) will request and expect varying levels of telecommuting accommodations due to telecommuting becoming more commonplace in general. See also Manage Telecommuters.

Use of Job Coaches

Allowing an employee to use a state-paid job coach who would help him or her successfully perform his or her job has been found to be a reasonable accommodation. Although an employer need not allow a coach to essentially perform the employee's job, it can be a reasonable request to allow a coach to help an employee with a disability perform daily routines or help him or her transition into a new job.

Making Existing Facilities Accessible

Making a job facility accessible to an employee with a disability by removing architectural, communication and transportation barriers can also be a reasonable accommodation. This includes not only making accessible all areas employees need to perform the essential functions of the job, but also includes making nonwork areas accessible, such as break rooms, lunch rooms, training rooms and restrooms. Examples include providing an employee with a hearing impairment a teletypewriter, providing a cashier with a disability a stool or providing an employee with a disability a parking space near the workplace.

The EEOC website includes information on how an employer may enhance workplace accessibility for employees with certain disabilities. For example, the EEOC has a question and answer guide that discusses workplace modifications for employees with vision impairments. The Job Accommodation Network (JAN) also provides an index of workplace accessibility modifications by disability and type of work.

Title I of the ADA does not require an employer to make its existing facilities accessible until a particular applicant or employee with a disability needs an accommodation, and then the modifications should be tailored to meet that individual's work needs. However, an employer 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.

Modifying Training Materials or Policies

An employer may be required to modify its policies or training materials as a form of reasonable accommodation. This may include making online training modules accessible to individuals with a disability. By way of further example, if there is a blind employee who needs to review training materials, the employer should consider having the materials printed in Braille. Moreover, an employer may need to modify its policies, such as revising policies to permit the use of a service animal by an individual with a disability.

Providing Qualified Readers or Interpreters

Hiring individuals to help an employee with a disability to perform his or her job is considered a reasonable accommodation. This includes hiring a qualified reader to help an employee read work-related documents and providing a sign language interpreter to help an employee effectively communicate in the workplace. Generally, the employer is only responsible for providing these services to enable employees with disabilities to perform job-related functions. An employer is not required to provide qualified readers and interpreters for personal use. See also EEOC's October 28, 2013, Informal Discussion Letter Regarding the ADA and Sign Language Interpreters.

Reassignment

The analysis of what accommodation to provide does not necessarily end upon a determination that an employee cannot perform the essential functions of the position. The search for a reasonable accommodation should also consider a transfer or reassignment to a different vacant position that the employee might be able to perform, with or without reasonable accommodation. Reassignment should not be automatically forced upon an employee with a disability, and should be considered only after making a determination that no reasonable accommodation is possible with respect to the employee's current position.

An employer's duty to consider reassignment as an accommodation does not include an obligation to "bump" a current employee, to create a new position, to change a temporary job into a permanent one, to eliminate essential functions of the future job or to provide training so that the employee obtains the qualifications necessary for the new position.

In addition, some courts have held that the ADA does not necessarily require an employer to place an employee with a disability in a job for which there is a better applicant, provided the employer has a policy and/or consistent practice of hiring the best applicant. Other courts, however, have held that the ADA does require an employer to place an employee with a disability, who is minimally qualified for a position, into the position in lieu of a more qualified candidate. See The 7th Circuit Changes Its Position on Assigning Employees With Disabilities to Vacant Positions.

As the issue of whether an individual with a disability, who is minimally qualified for a position, should receive "preferential" treatment in reassignment decisions is evolving, it is advisable to consult with employment counsel when considering reassignment as a potential reasonable accommodation.

Service Animals

Title III of the ADA requires places of public accommodation to modify policies, practices or procedures to permit the use of service animals to accompany people with disabilities in all areas of the facility where the public is normally allowed to go. +28 C.F.R. § 35.136. Title III regulations define a service animal as any dog that is individually trained to do work or perform tasks for the benefit of an individual with a disability, including a physical, sensory, psychiatric, intellectual or other mental disability. The work or tasks performed by a service animal must be directly related to the individual´s disability. Examples of work or tasks include, but are not limited to:

  • Assisting individuals who are blind or have low vision with navigation and other tasks;
  • Alerting individuals who are deaf or hard of hearing to the presence of people or sounds;
  • Providing nonviolent protection or rescue work;
  • Pulling a wheelchair;
  • Assisting an individual during a seizure;
  • Alerting individuals to the presence of allergens;
  • Retrieving items such as medicine or the telephone;
  • Providing physical support and assistance with balance and stability to individuals with mobility disabilities; and
  • Helping persons with psychiatric and neurological disabilities by preventing or interrupting impulsive or destructive behaviors.

+28 C.F.R. § 36.104.

Dogs whose sole function is to provide comfort or emotional support do not qualify as service animals under Title III of the ADA. While the definition states that other species of animals, whether wild or domestic, trained or untrained, are not service animals for the purposes of Title III of the ADA, the regulations permit the use of a miniature horse that has been individually trained to do work or perform tasks for the benefit of the individual with a disability. +28 C.F.R. § 35.136(i).

What constitutes a service animal may vary by state. Historically, employees were limited to trained service or guide animals, but some states have expanded the definition to include assistive animals, such as support animals. Some state laws also speak to whether an employer must allow employees to train service animals in the workplace. When an employee makes a request to bring in a service animal that is currently in training, the employer should check any applicable state law. If the state law does not address access for service animals in training, then the employer should determine whether the employee who is making the request has a disability and needs the service animal because of the disability. If the employee does have a disability, then the employer needs to get more information to determine whether the service animal will be effective and will not be disruptive (e.g., the employer could have the employee demonstrate the animal's behavior and current level of training). See State Requirements.See also Department of Justice's Revised ADA Requirements: Service Animals.

While Title I of the ADA does not specifically address service animals in the workplace, a service animal may be a reasonable accommodation to an employee with a disability under the ADA. Therefore, an employee with a disability does not have an automatic right to have his or her service animal in the workplace. As with all requests for a reasonable accommodation, an employer should engage in a discussion with the employee to determine which accommodations, if any, would help the employee perform his or her job without imposing a significant difficulty or expense on the employer.

If an employee is allowed to bring a service animal to work, the employer should consult with the employee to find out what accommodations the employee may need to care for the animal. For example, an employee might need to adjust his or her break times to take the service animal outside or may need leave to provide the service animal with additional training. In addition, the employer may want to consider providing a designated place where the employee can take care of the animal (e.g., feeding) and give the employee office space near an exit door to the facility or removed from high employee traffic areas. Service animals must be harnessed, leashed or tethered, unless these devices interfere with the service animal's work or the individual's disability prevents using these devices. In that case, the individual must maintain control of the animal through voice, signal or other effective controls. +28 C.F.R. § 36.203(c)(4).

An employer may also want to consider asking an employee for reasonable documentation or demonstration of the need for a service animal, and that the service animal is trained and will not disrupt the workplace. However, the reasonable documentation may not always come from a doctor - it may be from whoever trained the service animal - so an employer should be open to other sources for the documentation.

An employer must also remain mindful that an accommodation need of one employee may interfere with the accommodation need of another. For example, this may occur when one employee needs a service animal, but another employee is allergic to a service animal. In such circumstances the employer may need to find an accommodation that meets the needs of both employees (e.g., have the employees work in different parts of the building, allow flexible schedules so the employees are not at work at the same time; use a portable air purifier). See also Service Animals Policy.

Resources to Find Accommodations

Some resources that can help identify reasonable accommodations include:

See also EEOC Publication: Helping Patients with HIV Infection Who Need Accommodations at Work.

Hiring Outside Experts

If neither the employer nor the employee is able to suggest an effective accommodation, the employer should consider involving outside experts, such as vocational specialists, to assist in the search for an effective accommodation. The outside expert or consultant should be an objective third-party who will help facilitate discussions between the employer and employee about accommodation options. For example, an expert may be needed regarding specialized equipment or software required for an employee with a visual impairment.

All experts should be provided with a complete and accurate job description, and where applicable, a list of any accommodations that have already been considered.

Reasons Not to Accommodate

Unreasonable Requests

An employer is only required to provide reasonable accommodations to individuals with disabilities. Therefore, to the extent an accommodation request is unreasonable, an employer is free to reject it. For example, if an employee requests that an employer eliminate an essential function of a position as a form of accommodation, the employer may reject that request as unreasonable. Other types of unreasonable requests include:

  • A request that would eliminate an employee's primary job responsibility;
  • A request to create a new job or displace other employees from job positions;
  • A request that violates other employees' rights under a collective bargaining agreement;
  • A request that creates an undue financial or administrative burden on the employer (See Undue Hardship);
  • A request that excuses violations of the employer's policies or conduct rules;
  • Indefinite leave of absence (See When Leave Is Not Reasonable); or
  • A request that poses a direct threat to the health and safety of others or to the individual making the request.

Practical Example

Lisa is employed as a court reporter and one of the essential functions of her position is to transcribe various court proceedings. As a result of an injury to both of her hands, Lisa is no longer able to type. As an accommodation, Lisa requests that she not be required to transcribe any proceedings. Lisa's request is unreasonable because it would remove one of the essential functions of her position. See Jones v. Kerrville State Hosp., +142 F.3d 263 (5th Cir. 1998).

When Leave Is Not Reasonable

Generally, requests for a leave of absence are deemed to be reasonable when the leave of absence is likely to lead to the employee's ability to perform the essential functions of his or her job in the near future. However, requests for leave are unreasonable when the requests are for an indefinite amount of time or there is no indication that the employee will be able to return to work in the foreseeable future if the request is granted. The determination of what period of time is foreseeable is debatable and highly dependent on the facts. As such, an employer should carefully evaluate whether a request for leave is reasonable. An employer can review examples of requests that may or may not involve indefinite leave in the EEOC's guidance on applying performance and conduct standards to an employee with a disability (question 21).

Practical Example

Susan is employed with Acme Corporation and has been recently diagnosed with breast cancer. Susan requests 12 weeks of leave so that she can have a mastectomy and chemotherapy treatments. Acme Corporation grants Susan's request. During Susan's last week of leave, she contacts Acme Corporation and indicates that she needs an additional four weeks of leave to recover from the effects of her chemotherapy treatment. Susan provides documentation from her physician that she will be able to return to work at the end of the four-week extension of her leave. Susan's request is not for indefinite leave and would most likely be deemed reasonable. See Bernhard v. Brown & Brown of Lehigh Valley, Inc., +720 F. Supp. 2d 694 (E.D. Pa. 2010).

Practical Example

John works for Acme Rentals Corporation and was recently in a car accident. As a result of the injuries he sustained in the car accident, John needs to have surgery and physical therapy treatments. John requests, and is granted, a six-month leave of absence. At the end of John's six-month leave of absence, he informs Acme Rentals Corporation that, although his physical injuries have been improving, he needs another surgery and more physical therapy before he can return to work. John requests, and is granted, another six-month leave of absence. At the end of John's second leave of absence, John provides a note from his physician that indicates John's physical condition is not improving, but John will continue with physical therapy treatments in an effort to improve his condition so that he can hopefully return to work one day. John requests another six months of leave. John's request may be unreasonable because there is no indication that he will be able to return to work at the end of that leave. See Walsh v. United Parcel Serv., +201 F.3d 718 (6th Cir. 2000).

Unionized Employers and Seniority Systems

An employer is not required to violate the terms of a collective bargaining agreement to provide an individual with a disability with an accommodation. If an employee with a disability requests reassignment to a position, but does not have the requisite seniority under the collective bargaining agreement to fill the position, the employer is not required to violate the collective bargaining agreement's bona fide seniority system to provide the requested accommodation. See Labor Relations > Collective Bargaining Process. Even if an employer does not have a collective bargaining agreement in place, it can successfully argue that an accommodation request is unreasonable if it violates an established seniority system.

Undue Hardship

An employer is not required to provide an accommodation that would cause an undue hardship on its business. An undue hardship means the requested accommodation will cause the employer significant difficulty or expense.

An employer should assess on a case-by-case basis whether a proposed accommodation poses an undue hardship. In conducting that assessment, an employer should consider the following factors:

  • The nature and net cost of the accommodation, including consideration of outside funding;
  • The overall financial resources of the facility or facilities at issue;
  • The number of individuals employed at the facility at issue;
  • The effect on expenses and resources;
  • The overall financial resources of the covered entity;
  • The overall size of the business and number of its employees;
  • The number, type and location of its facilities;
  • The type of operation or operations of the covered entity;
  • The composition, structure and functions of the workforce;
  • The geographic separateness of the relevant facilities;
  • The administrative or fiscal relationship of the facility or facilities to the covered entity;
  • If funding is available from other outside resources;
  • If tax credits or deductions can offset the costs of an accommodation;
  • If an employee will contribute to the accommodation;
  • The impact on other employees; and
  • The impact of the accommodation upon the operation of the facility and its ability to conduct business.

+29 C.F.R. § 1630.2(p)(2).

When an employee requests a leave of absence as a reasonable accommodation, the employer should consider:

  • The amount and/or length of leave required;
  • The frequency of the leave;
  • Whether there is any flexibility with respect to the days on which leave may be taken; and
  • Whether the need for intermittent leave is predictable or unpredictable.

A leave of absence that is longer than the leave permitted by the FMLA is not in itself sufficient to show undue hardship, but indefinite leave, where neither the employee nor the employee's doctor can say when or whether the employee will be able to return to work, is sufficient to show undue hardship. See the EEOC's guidance on Employer-Provided Leave and the Americans with Disabilities Act.

Practical Example

Jane works as a waitress at Acme Flashing Lights restaurant. The restaurant is a disco-themed restaurant, and part of its ambiance includes mirror balls that reflect "flashing lights" throughout the restaurant. Jane develops a condition that causes her eyes to be sensitive to the "flashing lights" that are reflected through the restaurant. Jane requests that the restaurant use regular lighting during her shift, as opposed to the mirror ball's "flashing lights." Jane's request is likely an undue burden because it would cause a substantial disruption to the restaurant's operations.

Practical Example

Jim works as a customer service representative for a health care provider, and one of his primary duties is to take calls from patients who want to schedule an office visit. Due to a physical condition, Jim has suffered slight hearing loss, which sometimes makes it difficult for him to hear the patients when they call to make an appointment. Jim requests that the health care provider purchase a telephone with a voice amplifier so that he can better hear the patients during the calls. The telephone will cost the employer $500. Jim's request is likely not an undue burden.

Documentation of Hardship

An employer that believes that a proposed accommodation is not possible because it would cause an undue hardship should engage in a rigorous analysis before reaching that conclusion. An employer should be sure to support the determination that the requested accommodation poses an undue hardship to the business and operations with as much data and documentation as possible. For example, if a requested accommodation would result in a significant loss in sales, the employer should document how the requested accommodation affects sales and supplement that with as much concrete data as possible to show the negative impact the requested accommodation will have on sales. See Documentation of the Interactive Process.

Exercise Good-Faith Approach

An employer and an employee both have the duty to participate in good faith in the search for a reasonable accommodation. An employer should therefore always exercise good faith when addressing requests for accommodations. To exercise good faith, an employer should respond promptly to a request for an accommodation and keep the lines of communication open with the employee who requested an accommodation. Examples of exercising good faith include:

  • Meeting with the employee to gather information about his or her disability and limitations;
  • Requesting the employee's input on effective accommodations;
  • Showing proof that the employee's input was seriously considered; and
  • Suggesting alternative options if the employee's recommended accommodation was not a viable option (e.g., if it poses an undue burden).

In the event an employee files a claim with a court or administrative body alleging that an employer failed to accommodate him or her, the court or administrative body will scrutinize the process to determine which party was responsible for the breakdown and assign fault. An employer that can demonstrate good-faith efforts to identify and make a reasonable accommodation is likely able to defend against such claims and avoid liability for compensatory and punitive damages. Thus, an employer should carefully document its efforts in the interactive process. See Documentation of the Interactive Process. An employer should not obstruct or delay the interactive process in any way.

Ongoing Duty to Provide a Reasonable Accommodation

An employer's duty to provide a reasonable accommodation is ongoing. An employer should periodically check in with an employee to ensure that the provided accommodation is still adequate, effective and/or necessary. For instance, if an employee's disability becomes more advanced over time, the employer may need to revisit the accommodation that was previously provided and its effectiveness. Additionally, an individual with a disability may require multiple accommodations at once, different accommodations at different times, or an accommodation on some days but not others.

An employer should always be willing to explore the effectiveness of an accommodation and revisit or adjust an accommodation as needed. An employer should document this information as well. See Documentation of the Interactive Process. However, an employer is not obligated to investigate whether an employee's condition or impairment has improved or gone into remission.

Practical Example

Tom works as an administrative assistant, and his duties include typing reports and correspondence, answering the telephone, taking and distributing messages and mail to office personnel, and other clerical and secretarial duties. Tom has multiple sclerosis and eventually begins to have trouble maintaining his balance while walking. As an accommodation, Tom's employer adds a computer facsimile modem to his computer so that he will not have to walk to the fax machine to deliver and send faxes and provides a motor scooter for Tom to use to deliver the mail. Over time, Tom's condition begins to affect his ability to type reports. He requests and is provided a device he can speak into that will type his reports and correspondence for him. Tom is able to successfully perform the essential duties of his position due to these accommodations.

When monitoring the effectiveness of an accommodation, an employer should keep the following in mind:

  • Maintain the accommodation. To the extent an employer has provided equipment as an accommodation, the employer should update the equipment as needed.
  • Encourage ongoing communication. An employer should adopt a voluntary open-door policy so that an employee with a disability will feel comfortable communicating about issues with his or her accommodations.

Documentation of the Interactive Process

The changes to the ADA have shifted the focus from whether an individual is disabled to whether an employer's actions were motivated by discrimination. Thus, it has become more important for an employer to keep accurate records regarding their efforts to comply with the ADA. An employer should be sure to document each step in the interactive process, including, but not limited to:

  • How, when and to whom the request for an accommodation was made;
  • When the meet-and-confer session was held, who was present, the issues that were discussed and the resolution, if any, at that time;
  • The employee's disability and the limitations the disability poses on the ability of the employee to perform the essential functions of the job;
  • The essential functions of the employee's job;
  • The requested accommodation and the accommodation offered (if different);
  • The steps that were taken to explore the viability of suggested accommodations;
  • The pros and cons of every accommodation requested and offered, including the reasons why a suggested accommodation was rejected or implemented; and
  • When and how the final decision was communicated to the employee.

An employer should anticipate that at some point it may be necessary to prove the reasonableness and timeliness of its actions. Thus, all documentation should be factual, accurate and complete. Courts and administrative bodies may be more likely to uphold an employer's decision if the employer worked hard to accommodate an employee. The absence of documentation of the facts and circumstances surrounding an employer's or supervisor's response to an employee's accommodation request will make it more difficult for that employer or supervisor to prove that the process was conducted in good faith and may increase the likelihood that the employee's claim will be successful.

Finally, the ADA requires a certain level of confidentiality in the interactive process. Documentation that is collected about the employee's condition and which records the employer's deliberations on issues relating to reasonable accommodations must be kept in separate, confidential files and not intermingled with other personnel documents. Moreover, an employer should only share medical information with managers and supervisors on a need-to-know basis. See ADA Recordkeeping.

Accommodation Policies

An employer is not bound by any specific policies or procedures when engaging in the interactive process to determine whether a reasonable accommodation exists. Nevertheless, an employer should develop formal policies and procedures as to the protocol that should be followed when such requests are made. Indeed, developing these policies will help to ensure that supervisors, managers and HR professionals handle requests for accommodations in a consistent manner. See Reasonable Accommodation Policy; Disability Accommodation Handbook Statement.

Such policies should inform employees of the procedure that they should follow when an accommodation is needed and help to streamline such requests. Finally, having a formal policy in place will enable an employer to document its efforts to comply with the ADA.

The policy should:

  • Define what a reasonable accommodations is;
  • Define who can request accommodations (e.g., applicants and employees);
  • Provide the contact information of the individual in the company to whom requests for accommodations should be made;
  • Address the applicant's or employee's duty to fully cooperate in the accommodation process; and
  • Be included in the employee handbook for ease of reference to the employees.

Sample policies and advice regarding establishing procedures to address reasonable accommodations can be found on the EEOC's website and the Job Accommodation Network's website. The EEOC also provides guidance on how to establish procedures in order to facilitate the provision of reasonable accommodations. A copy of this guidance is available on the EEOC's website.

An employer should consult with legal counsel prior to implementing any policies regarding accommodations.

Medical Examinations/Inquiries

The ADA limits an employer's ability to conduct and use medical examinations and make disability-related inquiries. See Prohibited Actions.

A disability-related inquiry under the ADA is broadly defined as a "question (or series of questions) that is likely to elicit information about a disability."

A few examples of disability-related inquiries include asking an employee:

  • Whether he or she has (or ever had) a disability;
  • How he or she became disabled;
  • About the nature or severity of his or her disability;
  • To provide medical documentation regarding his or her disability;
  • About his or her workers' compensation history;
  • Whether he or she currently is taking any prescription drugs or medications; or
  • About his or her genetic information.

Permissible disability-related inquiries directed to current employees may include, but are not limited to:

  • Asking generally about an employee's well-being;
  • Asking an employee who looks tired or ill if he or she is feeling okay;
  • Asking an employee whether he or she can perform a task;
  • Asking an employee, pursuant to the employer's procedures for addressing substance abuse and alcohol use at work, whether he or she has been drinking; and
  • Asking an employee about his or her current illegal use of drugs.

See Conditional Offer > Medical Examinations and Questions; Recruiting and Hiring > Interviewing and Selecting Job Candidates > Questions About Health or Disability.

A medical examination is a procedure or test that seeks information about the existence, nature or severity of an individual's physical or mental impairment or health, or seeks information regarding an individual's physical or psychological health. Some factors used in determining whether an examination is a medical examination under the ADA are:

  • Whether the examination tends to disclose a specific physical or mental impairment;
  • Whether the examination is conducted by a health care professional or someone trained by a health care professional;
  • Whether the examiner reviews the individual's past medical records;
  • Whether the examination or test involves invasive procedures such as drawing blood samples;
  • Whether the examination or test measures a psychological response to performing a job task rather than the ability to perform the task; and
  • Whether the test involves the use of medical equipment or is performed in the medical setting.

See Conditional Offer > Medical Examinations and Questions.

The following are not considered medical examinations:

  • Tests to determine the current illegal use of drugs;
  • Physical agility tests that measure an employee's ability to perform actual or simulated job tasks;
  • Physical fitness tests that strictly measure an employee's performance of physical tasks, such as running or lifting;
  • Psychological tests that measure personality traits such as honesty, preferences and habits; and
  • Polygraph examinations.

The following procedures and tests may be considered medical examinations and, therefore, should be related to the job and consistent with business necessity:

  • Blood, urine, saliva or hair analysis to detect disease or genetic markers (e.g., sickle cell trait, cancer);
  • Blood pressure screening and cholesterol testing;
  • Range of motion tests that measure muscle strength and motor function; or
  • Psychological tests to identify mental disorders or impairments.

Medical Examinations and Disability-Related Inquiries - The Basic Scenarios

Medical examinations and disability-related inquiries typically take place in the following contexts:

  1. Pre-offer and/or post-offer (conditional offer of employment);
  2. Fitness for duty;
  3. Justification for a leave of absence and/or an accommodation; and
  4. An employee's questionable ability to perform the essential functions of his or her job.

Pre-Offer and Post-Offer Scenarios

The ADA's restrictions on the employer's use of a medical examination are based, in part, on whether the medical examination is a pre-offer or post-offer medical examination or inquiry. The distinctions between the scope of medical examination and disability-related inquiry that are permitted under the ADA in pre-offer and post-offer scenarios serve multiple important purposes. They are designed to:

  • Allow an applicant to demonstrate that he or she has the necessary job qualifications without regard to his or her disability;
  • Reduce the risk that the individual with a disability will be summarily excluded at the initial stage of the hiring process;
  • Force the employer to admit, to some extent, that the applicant is minimally qualified;
  • Ensure that the applicant and employer are more informed about the reasons supporting the rejection of an applicant;
  • Provide an applicant and an employer the opportunity to discuss reasonable accommodations; and
  • Make an employer's use of a pre-offer medical examination and rejection based on a pre-offer medical examination much more difficult to justify.
Limitations on Pre-Offer Medical Examinations

Generally, a pre-offer medical examination is prohibited under the ADA unless an employer can show that it is job-related and consistent with business necessity. See Job-Related/Business Necessity. In order to show that a pre-offer medical examination is job-related, an employer will need to explain how the medical examination shows that an applicant is minimally qualified for the job.

The ADA's provisions regarding pre-offer medical examinations and inquiries do not require an applicant to be qualified for the job because this section of the ADA is intended to protect all applicants from being subjected to arbitrary medical examinations that facilitate discovery of whether a disabling condition exists during the pre-offer process.

Because the determination of whether a medical examination is job-related and consistent with business necessity is a fact-sensitive topic, an employer considering the use of a pre-offer medical examination in its hiring procedures should consult with employment counsel before requiring applicants to submit to the medical examination.

See Prohibited Actions; Conduct Medical Testing of Job Applicants; Conditional Offer > Medical Examinations and Questions; Recruiting and Hiring > Interviewing and Selecting Job Candidates > Questions About Health or Disability.

Practical Example

Acme Company is hiring for numerous cashier positions. Before extending offers of employment to any applicants (i.e., pre-offer), Acme Company requires that the applicant be tested for HIV. Case law indicates that Acme Company would likely be violating the pre-offer provisions of the ADA because testing for HIV is not likely job-related and consistent with business necessity.

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. The employer's concerns must be reasonable and supported by objective evidence. For example:

  • A medical examination to test the eyesight of a truck driver is job-related.
  • If an employer knows that one of its drivers has issues with her eyesight and observes the employee having trouble seeing, it could be reasonable for the employer to believe that the employee's eyesight is obstructing her ability perform an essential job function - driving. A medical examination, therefore, may be warranted.
  • If an employer learns through the grapevine that an employee has sickle cell anemia, yet his job performance is not affected in any way, an attempt by the employer to compel a medical examination would likely violate the ADA and may violate the Genetic Information Nondiscrimination Act (GINA).

Limitations on Pre-Offer Disability-Related Inquiries

Generally, an employer cannot require an applicant to answer disability-related questions before a job offer is made. To that end, an employer cannot ask an applicant on an application or in an interview:

  • If he or she has a disability;
  • What type of disability he or she has; and/or
  • How seriously the disability impairs his or her daily activities.

The purpose of prohibiting an employer from asking such questions at the preemployment offer stage is to provide applicants with an immediate safeguard against disability discrimination. Because an employer evaluates employees through various methods, both medical and nonmedical, unless such a safeguard were in place, it would be difficult to ascertain whether an applicant was rejected because of his or her disability or for a nonmedical reason.

The employer also cannot seek this information in background investigations or reference checks conducted before a job offer. See Prohibited Actions; Recruiting and Hiring > Interviewing and Selecting Job Candidates > Permissible vs. Impermissible Job Application Questions.

To the extent an employer has affirmative action obligations, the employer may request applicants to self-identify as an individual with a disability. See Employee Management > EEO - Affirmative Action. Under Section 503 of the Rehabilitation Act, an employer that is a federal contractor or subcontractor must invite applicants to self-identify as an individual with a disability, both in the pre-offer and post-offer stage.

Job Interviews

When interviewing prospective employees, an employer must be careful not to ask any questions that might elicit a disability-related response. For example, while an employer may ask an applicant how he or she handles work stress, the employer may not ask whether the applicant has ever sought treatment for work stress. However, there are some exceptions to the rule against asking disability-related questions. An employer may ask limited questions concerning reasonable accommodation if:

  • The employer reasonably believes the applicant will need a reasonable accommodation because of an obvious disability;
  • The employer reasonably believes the applicant will need a reasonable accommodation because of a hidden disability that the applicant has voluntarily disclosed to the employer; or
  • The applicant has voluntarily disclosed to the employer that he or she needs a reasonable accommodation to perform the job.

Practical Example

Supervisor Jerry calls Stacey and arranges for her to be interviewed for a bookkeeping position. Stacey has no obvious disability and does not disclose a disability. Jerry explains the hiring process to Stacey, informing her that she must take a typing test at the conclusion of her oral interview. He asks her whether she will need a reasonable accommodation for the test. Jerry's inquiry does not violate the ADA because it is made in order to ascertain whether Stacey will need an accommodation for the hiring process itself. Jerry may not ask Stacey whether she needs an accommodation to perform the job, however, because she has no known disability.

Practical Example

Jan, who has no known disability, is being interviewed for a secretarial job with Acme Quick Settlements Law Group. Although Jan has not asked for a reasonable accommodation, either for the application process or the job, the interviewing manager asks Jan whether she will need a reasonable accommodation to perform the secretarial job. Asking whether an applicant would need a reasonable accommodation for the actual job he or she is seeking is impermissible, as the answer is likely to reveal whether he or she has a disability.

Practical Example

Sam is interviewing Mark, a paraplegic, for a commercial painter position with Acme True Designs. The position will require Mark to paint the interior and exterior of large commercial buildings. Sam asks Mark to explain how he will be able to paint all areas of the buildings. Sam's inquiry is appropriate since Mark's disability is readily apparent and Sam has a reasonable belief Mark's disability will interfere with his ability to perform the duties of the job.

Practical Example

While being interviewed for a position with Acme Exterminators, John is asked whether he currently uses illegal drugs and whether he has used drugs in the past. Acme's initial inquiry regarding John's current drug use is appropriate because current drug users are not covered by the ADA. The second portion of the question, however, is an improper disability-related inquiry since such a question may lead to information about past drug addiction, which is covered by the ADA.

Post-Offer (Conditional Offer) Medical Examinations and Disability-Related Inquiries

A conditional offer of employment refers to an offer of employment that becomes final only upon the successful completion of certain conditions. A conditional offer of employment is a good tool for employers since it allows them the opportunity to use additional methods to find out information about the skills and qualifications of an applicant. If an employer does not have the formal relationship created by a conditional offer of employment, it simply cannot make certain inquiries or perform medical examinations.

A conditional job offer must be a "real" offer of employment. A job offer is a true offer when the employer has evaluated all nonmedical information it reasonably could have obtained and analyzed before making the offer. Although there are times when an employer cannot reasonably obtain and evaluate all nonmedical information at the pre-offer stage, an offer will still be considered a real offer if the employer can show that it could not reasonably obtain the nonmedical information.

By way of example, it may be cost prohibitive for an employer to conduct a nonmedical examination such as a background check prior making a conditional offer of employment and then conduct a medical examination after the offer is made. Given these facts, the employer will likely be able to show that an offer was a true offer notwithstanding the fact that it did not conduct a background check prior to extending the conditional offer of employment.

After an offer of employment is made, but before the individual begins work, an employer may make a disability-related inquiry or require an individual to submit to a medical examination if it does so for all employees entering into a specific job category. A post-offer medical examination is permissible and appropriate only where the conditional offer of employment is genuine. See Conditional Offer > Medical Examinations and Questions; Recruiting and Hiring > Interviewing and Selecting Job Candidates > Questions About Health or Disability.

An employer who is a federal contractor and/or subcontractor falling under the purview of the Rehabilitation Act is also required to re-extend the invitation to applicants to self-identify as an individual with a disability, just as required during the pre-offer stage. These employers are also required to re-extend the self-identification invitation to employees at five-year intervals, again using the language specified on the OFCCP website. An employer will also need to remind employees at least once between each five-year resurvey that they may voluntarily update their disability status information.

Restrictions on Conditional Offer Medical Examinations/Disability-Related Inquiries

Unlike pre-offer medical examinations that must be job-related and consistent with business necessity, post-offer medical examinations do not have to be based on these factors. Rather, the ADA has set three procedural safeguards for post-offer or conditional offer medical examinations.

  1. The medical examination must be administered in a nondiscriminatory manner;
  2. The employer must adhere to the ADA's confidentiality requirements; and
  3. The employer is forbidden from using the results of the post-offer medical examination to defy the antidiscriminatory purpose of the ADA.

Practical Example

While working with his previous employer, Acme Built Right, Inc., Mark has a workplace accident that results in him sustaining a permanent back injury. ABC Construction Company has an opening for a drywall installer. Mark applies for the position, and he is offered the job. Before Mark begins working, however, his supervisor at ABC learns about his back injury from a friend who works at Acme Built Right. Believing Mark poses a significant risk of future injury, ABC informs Mark that he will need to take a physical examination before he is allowed to work. No other ABC employee has ever been asked to take such an exam.

Under the circumstances, the examination is improper and would likely violate the ADA, and potentially the state workers' compensation law. Initially, the examination is an inappropriate post-offer examination because ABC does not have a uniform policy of requiring that all of its drywall installers take such an exam. This post-offer exam is also improper because it focuses on Mark's injury to predict that he poses a risk of future injury. A jury may find that ABC regards Mark as being disabled based on its request for a medical examination related to his back injury.

Prerequisite for Health Risk Assessment

Mandatory health risk assessments that are not job-related and consistent with business necessity may violate the ADA. Such assessments include, but are not limited to, health-related questionnaires, taking a blood pressure test and providing blood for use in a blood panel screen. These types of assessments are generally associated with the implementation and administration of an employer's health or wellness plans. A voluntary health assessment in which employees are neither required to participate nor are penalized for nonparticipation do not, however, violate the ADA. Employee Benefits> Health Care Benefits: Wellness Plans.

Fitness-for-Duty Examinations

The ADA permits an employer 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. Some likely acceptable rationales for requesting a fitness-for-duty examination under the ADA are to:

  • Determine if an employee who has requested a reasonable accommodation is covered by the ADA;
  • Determine if the employee can perform the essential functions of the job with or without a reasonable accommodation;
  • Identify a reasonable accommodation; or
  • Determine if an employee poses a threat to himself or herself or others. See Fitness-for-Duty Examinations - Direct Threat to Self or Safety of Others.

An employer's fitness for duty requirement that an employee be "100 percent" before returning to work may violate the ADA. See ADA Interplay.

Fitness-for-Duty Examinations - Direct Threat to Self or Safety of Others

A direct threat is a situation presenting a significant risk of substantial harm to the health or safety of the employee or others that cannot be eliminated or reduced by a reasonable accommodation.

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 who 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 inquiries and/or require that the employee submit to a medical examination. See How to Deal With an Employee Who Is a "Direct Threat" to Self or Others.

Fitness-for-duty examinations administered based on a substantiated and objective concern that an employee may harm himself, herself, or others are generally permitted because an employer has an obligation to maintain a safe workplace. An employer also may be held responsible for harm caused to people with whom its employees come into contact while performing their jobs. Thus, an employer does not have to wait until an employee has done real harm or injury before ordering a fitness-for-duty examination. An employer should keep in mind, however, that an employee's annoying or inefficient behavior is not enough to justify an exam. There must be a genuine reason to doubt whether the employee can perform job-related functions without posing a direct threat of harm.

Before requiring an employee to submit to a fitness for duty examination on the basis of potential direct threat to the employee's safety or the safety of others, an employer should undertake a thoughtful analysis of what the direct threat may be. In doing so, the employer should carefully document its analysis. For a thorough discussion of the analysis of a potential direct threat and documenting it, see the direct threat discussion in Duty to Accommodate and the Interactive Process.

Practical Example

Jane, the manager of a clothing store, informs her supervisor that she has breast cancer and is undergoing chemotherapy. Jane does not request a reasonable accommodation from her supervisor, and her employer has not noticed any change in her work performance at any time prior to her advising of her health condition. Nonetheless, Jane's employer insists that she submit to a fitness for duty exam. The request is inappropriate since Jane's condition has not affected her ability to perform her job.

Practical Example

Lee, a long-haul truck driver who works for Acme Trucking, has increasingly been involved in a number of intense verbal altercations with his co-workers. The altercations are typically precipitated by Lee accusing his co-workers of "watching" him and/or talking behind his back. Lee recently accused one of his superiors of injecting him with mind-altering drugs, and Lee vowed to "even the score." In light of Lee's conduct, Acme Trucking has placed him on an involuntary leave of absence subject to his obtaining a fitness for duty examination that releases him to return to work. Under the circumstances, Acme Trucking's insistence on a fitness for duty examination is appropriate since Lee's conduct poses a risk of harm to his co-workers and superior.

Justification for Leave of Absence and/or Accommodation

An employer is entitled to know why an employee is requesting a medical leave of absence and, therefore, may ask an employee to justify his or her use of medical leave by providing a doctor's note or other explanation. The employer must make sure, however, that its policy or practice applies to all employees, with and without disabilities.

If the employee's initial request for leave did not specify a return date or if the employee needs additional leave beyond what was originally granted, the employer may require the employee to provide periodic updates on his or her condition and possible date of return. An employer cannot use an employee's leave as a justification for far-ranging disability-related inquiries or requiring an unrelated medical examination. Only inquiries related to the specific medical condition for which the employee took leave are permitted.

Questionable Ability to Perform Essential Functions of Job

If an employer has a reasonable belief that an employee's present ability to perform his or her essential job functions is impaired in some way, the employer may make disability-related inquiries or require the employee to submit to a medical examination, as long as the medical examination is job-related and consistent with business necessity. See Job-Related/Business Necessity. Any inquiries or medical examination must be limited in scope to what is needed to make an assessment of the employee's ability to work.

Practical Example

Donald, an employee with a known psychiatric condition, is having problems with his medication. In addition to being impaired in his ability to meet his daily work quotas, Donald is prone to fits of rage, anger and paranoia. Ultimately, Donald threatens several of his co-workers and is disciplined for this reason. Shortly thereafter, he takes a leave of absence and is hospitalized for treatment related to his condition. After his release, Donald indicates to the company that he is prepared to return to work. Based on Donald's prior conduct, his employer may ask that he submit additional documentation regarding his medication(s) or treatment or request that he submit to a medical examination.

Drug Testing Is Not a Medical Examination

The ADA's application to persons who have engaged in the abuse of illegal drugs and who may have issues with alcoholism can be a source of confusion for many employers. It is important to note that 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.

Illegal Drugs

A person who currently uses illegal drugs or who illegally uses controlled substances (i.e., prescription drugs) is not considered disabled under the ADA. Current drug use means that the employee's illegal use of drugs transpired recently enough to justify the employer's reasonable belief that the employee's use of drugs is a continuous problem. An employer should determine whether drug use is current on a case-by-case basis.

The illegal use of drugs includes the use, possession or distribution of drugs defined as unlawful under the Controlled Substance Act (e.g., heroin, cocaine). The illegal use of drugs does not include:

  • Drugs taken under the supervision of a licensed health care provider (including experimental drugs for individuals suffering from AIDS, epilepsy or mental illness); or
  • Other uses permitted by law (i.e., under the Controlled Substance Act).

See Conditions Excluded from the Definition of Disabled.

An employer should be mindful that an employee can be addicted to prescription drugs (even if taken properly under the supervision of a licensed health care provider) and thus may be disabled under the ADA.

An employer should also be aware that some states permit the use of medical marijuana by patients with certain health and medical conditions. Most of these states' laws do not require an employer to allow such employees to be under the influence of marijuana while at work or to accommodate the employee by allowing the use of marijuana in the workplace. However, an employer must consider that such employees may need other accommodations if their underlying medical conditions would qualify as disabling under the ADA. See State Requirements; Medical Marijuana.

Recovering Drug Addicts

A former drug addict who abused illegal drugs may be considered disabled if he or she:

  • Is participating in supervised rehabilitation programs (e.g., Narcotics Anonymous); or
  • Is rehabilitated and no longer taking drugs.

An individual who is falsely regarded as being a former drug addict is also protected by the ADA. In order to be substantially limited by drug use, the individual must actually have been or currently be addicted to the drug. Casual or social drug users are not protected by the ADA. For more information regarding illegal drug use and the ADA, please see the Job Accommodation Network's Title I Technical Assistance Manual.

Practical Example

On Friday, Mary Jane, who is an administrative assistant, reports to her supervisor, Henry, that since she started with the company, she has been addicted to heroin. She informs Henry that as of last Monday she joined an outpatient rehabilitation program with the local hospital and that she will no longer be available to work overtime because her rehabilitation program gets under way every evening promptly at 5:30 p.m. Mary Jane works overtime for Henry approximately once a month and he is annoyed that she will not be able to do so because of her rehabilitation scheduled. Because she is actively involved in a rehabilitation program, Mary Jane is disabled and afforded the protections of the ADA. The employer should request information as permitted under the ADA confirming that she is engaged in the rehabilitation program, and presuming that she supplies the information, the employer should accommodate her need to attend the outpatient sessions.

Practical Example

Barry likes to smoke marijuana with a few of his co-workers at his home after work. Barry does so about four times a month and he is not addicted to marijuana or any other illegal substance. Based on his use of marijuana, Barry is not disabled under the ADA.

Alcohol

Unlike a current illegal drug user, someone who currently uses alcohol is not automatically denied protection under the ADA simply because of the alcohol use. An alcoholic is a person with a disability under the ADA. Accordingly, an employer might need to consider an accommodation if the alcoholic is someone who is qualified to perform the essential functions of a job. However, an employer may discipline, terminate or deny employment to an alcoholic whose use of alcohol adversely affects job performance or conduct to such an extent that he or she is not qualified for the position. Moreover, someone who is a recovering alcoholic or who is mistakenly perceived as being an alcoholic may be deemed disabled under the ADA. For more information regarding alcoholism and the ADA, please see the Job Accommodation Network's Title I Technical Assistance Manual. See also Employee Management > Employee Discipline: Disciplining Employees with Drug and Alcohol Addictions.

Practical Example

Trish goes out to celebrate her recent graduation from an MBA night school program. She has a considerable number of martinis at the bar with her friends. Trish decides that she is fine to drive herself home. On her way home, Trish is pulled over by the police, subjected to a breathalyzer test and arrested for driving under the influence. Based on the applicable state's law, Trish will be placed on probation and her license will be revoked for six months. Trish calls her employer to explain that she will not be able to start at 8:00 a.m. as required because she lost her license due to her DUI. Trish is not disabled for purposes of the ADA. Moreover, the employer need not accommodate Trish because she cannot get to work on time. The employer may terminate Trish pursuant to its applicable policies and procedures if necessary as she is not protected by the ADA.

Practical Example

Greg's employer knows that he is a recovering alcoholic. Greg leaves work early every Wednesday to attend Alcoholics Anonymous meetings. Recently, Greg's wife passed away and he has relapsed into drinking. Over the last few weeks, Greg has been late to work on numerous occasions. Although Greg is protected under the ADA, his alcoholism is impacting his ability to get to work on time and Greg's employer can take disciplinary action pursuant to its attendance policies. The employer, however, may not discipline Greg more severely than it does other employees who violate its attendance policy.

Prohibition of Illegal Use of Drugs and Alcohol at Work - Drug Testing

The ADA permits an employer to prohibit illegal use of drugs and the use of alcohol at the workplace. See Risk Management - Health, Safety, Security > Employee Health > Substance Abuse. Accordingly, an employee cannot show up to work under the influence of illegal drugs or intoxicated and assert protection under the ADA. The ADA neither prohibits nor authorizes an employer to conduct drug testing of its workforce. Therefore, subject to other applicable state or federal laws, an employer is free to conduct drug and alcohol tests on current employees, and should consider limitations that may arise when conducting such tests on applicants. See Recruiting and Hiring > Preemployment Screening and Testing > Drug and Alcohol Testing Programs; Drug and Alcohol Free Workplace Policy.

The ADA also does not require an employer to provide an alcoholic or a recovering drug addict with more leeway when it comes to the employer's performance standards. This is true even if lapses in performance or conduct are the direct result of an employee's alcoholism or illegal drug use. Moreover, an employer may ask an applicant if he or she is currently using drugs, as long as the question is not likely to elicit information about prior addiction. See Recruiting and Hiring > Preemployment Screening and Testing > Drug and Alcohol Testing Programs.

In addition, an employer in specific occupations, such as law enforcement, can refuse to hire or can fire an individual with a prior history of illegal drug abuse (even if the person is not currently using drugs) when the employer can show that the employment decision is job-related and consistent with business necessity. An employer can also refuse to hire or can fire an individual with a prior history of illegal drug use or alcoholism if the employer can show that the individual is a direct threat to the health or safety of himself or herself or to others (and that direct threat cannot be reduced or eliminated with a reasonable accommodation). See Not Qualified if Direct Threat to Health and Safety of Self or Others.

Medical Examinations and Disability-Related Inquiries During an Emergency

Pandemics

A pandemic is a global epidemic. During the last century, the world has seen a number of pandemics such as the Spanish flu, the "Asian" and "Hong Kong" flus, the H1N1 outbreak of 2009, and the Ebola and Zika viruses.

The EEOC published a technical assistance document, Pandemic Preparedness in the Workplace and the Americans with Disabilities Act, that an employer can consult when considering how to implement strategies to address potential pandemic outbreaks in a manner consistent with the ADA. Additional information on related topics can be found in Risk Management - Health, Safety, Security > Employee Health > Pandemics.

A few things that an employer may do during a pandemic, which are consistent with the ADA, include but are not limited to the following:

  • An employer may ask an employee who becomes ill at work or displays the symptoms of a pandemic to leave the workplace.
  • 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. See Employers Must Wage War on the Flu and Its Workplace Effects. The employer must maintain all information about the employee's illness as a confidential medical file in compliance with the ADA. See ADA Recordkeeping.
  • Until a conditional offer of employment has been extended, an employer is prohibited from inquiring into whether an applicant has symptoms related to a pandemic. An employer may only make such an inquiry, even after the conditional offer of employment, if all employees entering into the same job category are required to undergo the medical examination and if the information obtained regarding the medical condition or history of the applicant is collected and maintained on separate forms and in separate medical files and is treated as a confidential medical record.
  • If the Centers for Disease Control and Prevention or state or local public health officials recommend that people who visit specified locations remain at home for several days until it is clear they do not have pandemic symptoms, an employer may ask whether employees are returning from these locations, even if the travel was personal.
  • An employer may encourage employees to work from alternate locations such as home.
  • An employer may require that its employees adopt infection control practices such as regular hand washing, coughing and sneezing etiquette, and proper tissue usage and disposal. These practices do not implicate the ADA.
  • An employer may require employees to wear personal protective equipment during a pandemic. However, the employer must make reasonable accommodations for individuals with disabilities where necessary.

In order to properly prepare for pandemics, an employer can:

  • Identify a pandemic coordinator or team responsible for managing pandemics in the workplace;
  • Create communications concerning pandemic preparedness in forms accessible to all employees, including employees with disabilities; and
  • Survey employees, using broad questions that are not limited to disability-related inquiries, to anticipate absenteeism. The EEOC's technical assistance document on pandemics provides a sample of such a survey.

Emergency Evacuations

An employer that maintains a workplace evacuation plan as part of its workplace safety policies and procedures should include provisions regarding assistance during an evacuation to individuals whose medical conditions may necessitate it. However, identifying individuals who may need such assistance and sharing that information with others in the workplace may have ADA implications. According to the EEOC, an employer is permitted to ask employees whether they will require assistance in the event of an emergency evacuation and what specific assistance would be required. Further, the ADA provisions governing confidentiality of an employee's medical information includes an exception for providing information to first aid and safety personnel. For further information on ADA compliance with respect to evacuation procedures, review the EEOC's evacuation fact sheet. See also Workplace Security: Federal.

Drawbacks to Requiring a Medical Exam

There are drawbacks to requiring that an employee or applicant submit to a medical examination. In the hiring context, the ADA makes an employer's rejection of an applicant based on the results of a pre-offer medical examination much more difficult to justify. Further, when an employer unjustifiably relies on results from a pre-offer medical examination administered in a discriminatory manner, or if the employer improperly characterizes the minimal qualifications for a position, the employer may be held liable for violation of the pre-offer provisions under the ADA. Below are some additional drawbacks that are associated with an employer's decision to require a medical examination:

  • Depending on the circumstances surrounding the employer's request for a medical examination, the employer may open itself up to a regarded as or perceived disability discrimination claim; or
  • As explained in further detail below, information obtained during a medical examination can subject an employer to liability under GINA.

Permissible Disclosures of Medical Information

The ADA's confidentiality requirement requires that medical records be maintained in a separate medical file (i.e., not in the employee's personnel file) and that access to them must be restricted. An employer must give special consideration to where and how they maintain their confidential medical files, limiting access to those who need-to-know only and protecting applicants and employees. The EEOC recommends that an employer store the medical files in a secure, locked location, and that only certain persons within the organization be provided with the means to access the files. That is, an employee's medical file should only be made available to those people who have a legitimate business need to access the files, such as:

  • Supervisory personnel who need to know the employee's work restrictions and necessary accommodations;
  • Safety and first aid workers, if necessary to treat the employee or provide for evacuation procedures;
  • Government officials as required by law; and
  • Insurance companies that require a medical exam.

See ADA Recordkeeping.

HIPAA Compliance

The Health Insurance Portability and Accountability Act (HIPAA) Privacy Rule defines protected health information (PHI) to include, among other things, all information related to the past, present or future health status of an identified individual and to treatment received by an identified individual. Although this would appear to include all employee health information, this is not actually the case.

For employers, HIPAA only applies if the health information was created or received by the employer in its capacity as a "health plan" or covered "health care provider." When an employer is requesting or reviewing medical information in its capacity as an employer, such as when it is evaluating an employee's request for a reasonable accommodation, it is considered to be viewing an employment record. In such cases, HIPAA would not apply to the employer. See Employee Benefits > Health Information and Privacy (HIPAA).

Proper Maintenance of Medical Information/Documents

Employee records, in general, should be considered confidential. Although access rights to personnel files may vary by jurisdiction, any medical information provided to an employer should be maintained in a separate medical file (i.e., not as part of the personnel file). For purposes of the ADA, access to an employee's medical file should be restricted and limited to:

  1. The employee;
  2. The HR personnel responsible for engaging in the hiring and interactive process under the ADA, assessing reasonable accommodations, and/or otherwise handling employee medical issues, who need to know of the medical information to facilitate the interactive process or otherwise address medical issues;
  3. Supervisors and managers only as necessary to administer reasonable accommodations or to identify restrictions on work or duties. The supervisors' and managers' access to this information should be controlled by the employer's HR department and it is not advisable to have the employee's medical file available for open access to management. Management's access to certain information in a medical file should be on a need-to-know basis;
  4. Government officials investigating compliance with the ADA;
  5. First aid and safety personnel if the disability may require emergency treatment; and
  6. Insurance companies that require a medical examination for insurance-related reasons.

The EEOC recommends that an employer store the medical files in a secure, locked location, and that only certain persons within the organization be provided with the means to access the files. Additionally, medical information related to a request for FMLA leave, workers' compensation information and GINA-related documents may be maintained in the same file as the ADA-related medical information as long as all of the information is kept confidential as required by the ADA. For more information on this topic, see ADA Recordkeeping.

Training Managers on Confidentiality Requirements

The impact of the ADA is felt by an employer in a number of ways. It is therefore imperative that an employer prepare its managers and supervisors who are on the frontline by providing general information about the ADA, including its confidentiality requirements. See Employee Management > Training and Development; ADA: An Overview - Supervisor Briefing; ADA: Managing an Employee With a Disability - Supervisor Briefing.

Relationship With GINA

Similar to Title I of the ADA, Title II of the Genetic Information Nondiscrimination Act (GINA) limits an employer's access to medical information. Specifically, GINA prohibits employers and other covered entities from requesting, requiring or purchasing genetic information (e.g., information about an individual's genetic tests, genetic tests of a family member or family medical history) about job applicants and employees or their family members at any time, including during the post-offer stage of employment, except as specifically allowed by this law. See ADA Interplay.

An employer that obtains genetic information on certain employees or applicants is required to maintain the confidentiality of the information and treat it as part of the employees' or applicants' confidential medical information. An employer may only disclose genetic information concerning an employee under the following six circumstances:

  1. To the employee or member of a labor organization (or family member if the family member is receiving the genetic services) at the written request of the employee or member of the organization;
  2. To an occupational or other health researcher;
  3. In response to an order of a court under certain circumstances;
  4. To government officials who are investigating the employer's compliance with GINA;
  5. To the extent the disclosure is made in connection with the FMLA and other medical leave laws; and
  6. To a federal, state or local public health agency regarding a contagious disease that presents an imminent hazard of death or life-threatening illness, and the employee who is (or whose family member is) the subject of a disclosure under this paragraph is notified of such disclosure.

The EEOC takes the position that accessing an individual's medical records directly is no different from asking an individual for information about current health status, which the Commission considers a request for genetic information, particularly where the request is likely to result in the requestor receiving such information, such as requesting family history information. An employer, therefore, should be careful about asking individuals to sign authorizations for release of medical information.

Because GINA does not prohibit inadvertent acquisitions of genetic information, it is recommended that an employer lawfully requesting employee medical records include warning language in any medical release in order to ensure that the acquisition of genetic information in response to the employer's request is considered inadvertent. See ADA Interplay.

Requesting and Receiving Information from Health Care Providers

An employee must request medical information from his or her health care provider using medical certification forms provided by the employer. In the event the employee's health care provider is reluctant to provide information on the basis of patient privacy and confidentiality, the employer's forms must be clear that the employee has given permission for the records to be released and that providing the information will not violate HIPAA or GINA. See ADA Interplay; ADA Recordkeeping.

Generally, when an employer - in its capacity as an employer - requests or reviews the following medical information, the medical information is considered an employment record under HIPAA and is therefore not covered by the HIPAA Privacy Rule:

  • Medical information required by an employer to carry out its obligations under the ADA and the FMLA;
  • Files containing information about occupational injuries, disability insurance eligibility, sick leave requests and justifications; and
  • Drug screening results, workplace medical surveillance and fitness-for-duty tests for employees.

An employer should also exercise caution in drafting fitness-for-duty and other medical certification forms to ensure that the employee's health care provider is not being asked to provide legal conclusions. For example, an employee's doctor should be able to state whether an employee is cleared to work or whether he or she is able to perform certain job functions. However, a doctor should not be asked to provide an opinion on whether an accommodation is reasonable, just whether the employee is able to perform his or her job duties under certain conditions. An employee's doctor may be unfamiliar with the company and with the job, and usually does not know which work accommodations are possible.

Fitness-for-duty and other medical certification forms must be narrowly drafted so that the employer is asking for information directly connected with the employee's medical impairment. Under the ADA, an employer cannot use the employee's medical leave as an excuse to make overly broad disability-related inquiries or subject the employee to medical exams that have nothing to do with the employee's need for accommodation.

Preemployment Practices Regulated by the ADA

Recruiting People With Disabilities/Job Applicants

Under the ADA, an employer is not generally required to take any special actions to recruit individuals with a disability. Certain employers with affirmative action obligations, however, may need to consider taking steps to recruit individuals with a disability, such as advertising for positions with state vocational rehabilitation programs. See Recruiting and Hiring > Affirmative Action Planning.

OFCCP Rules Regarding Contractors

Section 503 of the Rehabilitation Act obligates federal contractors and subcontractors to create an affirmative action plan (AAP) for recruiting and retaining individuals with a disability. Pertinent provisions of the Section 503 Final Rule include:

  • Utilization goal: Contractors must apply a 7% hiring goal (i.e., utilization goal) for qualified individuals with disabilities. This goal should not operate as a quota or a ceiling that limits the employment of individuals with a disability. Instead, the goal should inform decision-making and hold decision-makers accountable. In addition:
    • The goal must be applied to each job group, with one exception. Smaller contractors (i.e., those with a total workforce of 100 employees or fewer) may apply the 7% hiring goal to their entire workforce;
    • Contractors must conduct an annual utilization analysis and implement processes to address any compliance problems;
    • Specific action-oriented programs must be developed to address any identified problems; and
    • Failure to meet a disability goal will not be a violation of the regulations and will not lead to a fine, penalty or sanction. In addition, if a contractor determines that it failed to meet the disability goal this will not constitute as a finding or an admission of discrimination in violation of the regulation. However, contractors should be ready to show the OFCCP that they have undertaken the required assessment and that if they are not meeting the goal, they are taking affirmative steps to both identify and remove any impediments to equal employment opportunities.
  • Data collection and records access: Contractors must compile information regarding the number of applicants and hires with disabilities. This information should assist contractors in measuring the effectiveness of their outreach and recruitment strategies. For example, the following information must be documented annually:

    • The total number of applicants for employment and how many out of that total are applicants with disabilities;
    • The total number of job openings, the number of jobs filled and the number of jobs filled by individuals with disabilities; and
    • The total number of job opening and the total number of jobs filled.

Contractors must keep this information for a minimum of three years. In addition, contractors must allow OFCCP to review documents either on-site or off site, at OFCCP's option and in an available format that OFCCP requests.

  • Invitation to Self-Identify (Applicant): Contractors must invite applicants to self-identify as an individual with a disability. This invitation must be provided to each applicant when the applicant applies or is considered for employment (i.e., the pre-offer stage). Contractors still must invite applicants to self-identify after an offer of employment is extended (i.e., the post-offer stage).
  • Invitation to Self-Identify (Employee): Contractors must invite their employees to self-identify as an individual with a disability prior to March 24, 2015, and then every five years thereafter. The invitation must use specific language. The OFCCP has posted an official form for contractors to use. Contractors should not use their own language to satisfy this requirement. In addition, at least one time during the years between each invitation, contractors must remind employees that they can voluntarily update their disability status at any time. This allows employees to self-identify for the first time or to change their previously reported status. See also the EEOC's Opinion on the Invitation to Self-Identify.
  • Revised Definition of Disability: The Final Rule incorporates necessary changes resulting from the ADAAA, including altering certain nondiscrimination provisions of the regulations. The reasonable accommodation obligation was also extended to a contractor's use of electronic or online job application systems. If a contractor uses an electronic/online system it must reasonably accommodate individuals with disabilities. The OFCCP suggests that contractors make their online application accessible and compatible with assistive technologies. It is also recommended that contractors use reasonable accommodation procedures as a best practice and included guidance in the Appendix.
  • Incorporation of Equal Opportunity Clause (EO Clause): Contractors can still incorporate an EO Clause into subcontracts by reference so long as the following mandated language appears in bold:
  • This contractor and subcontractor shall abide by the requirements of +41 C.F.R. 60-741.5(a). This regulation prohibits discrimination against qualified individuals on the basis of disability, and requires affirmative action by covered prime contractors and subcontractors to employ and advance in employment qualified individuals with disabilities.

Contractors and subcontractors should review all policies, procedures and practices to identify the changes needed to comply with the new regulations. See also What steps should federal contractors take to ensure compliance with the OFCCP's Final Rule regarding Section 503 of the Rehabilitation Act of 1973?

For more information on the OFCCP's Final Rule, see Podcast Provides Guidance for Employers on New OFCCP Rules; EEO - Affirmative Action: Federal; and Federal Contractors Face New Hiring, Recordkeeping Requirements for Veterans, Workers With Disabilities.

Equal Opportunity Rules Applicable to All Employers

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. For example, an employer conducting a recruitment event can eliminate obstacles and avoid liability for disability discrimination by conducting the event at a location that is accessible to individuals with various impairments. See Recruitment and Hiring > Recruiting.

There are a number of ways that an employer can recruit qualified individuals with a disability for its applicant pool. Some of the entities that an employer might consider reaching out to include:

  • College and university personnel who organize services for students with disabilities, as they are a resource for information on recruitment and accessibility;
  • Local independent living centers;
  • State and local job rehabilitation organizations; and
  • Private groups that represent people with particular disabilities.

Job Description - Evidence of What Job Functions Are Essential

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. Specifically:

  • The duties listed as essential must, in fact, be essential job functions; and
  • The job description must be created before the employer advertises or interviews applicants for the job.

From a practical perspective, what is included in the job description may be relied upon by an individual with a disability pursuing a failure to hire claim in an effort to show that he or she was more qualified than a candidate without a disability. Therefore, it is imperative that job descriptions and advertisements for positions be carefully reviewed to ensure that essential job functions and qualifications for positions are accurate. For a thorough discussion of what constitutes an essential function, see Essential Functions of the Job.

Practical Example

Mark applies for a social media coordinator position at Acme Advertising. The job description for the position states that an applicant must have attained a bachelor's degree in web design. Mark has a speech impediment that is noticeable to Acme's HR Director during their phone interview. Mark, however, has some background experience in setting up social media outlets for a corporation and he has a bachelor's degree in web design. The other applicant, Amy, recently graduated from a two-year web design program, but took web design at a vocational school while in high school. Acme prefers Amy over Mark because the company would prefer to teach Amy its practices/procedures for social media advertising and it feels that her energy/excitement about the position is in line with what it wants. Based on the job description, however, and the requirement of a bachelor's degree, Acme Advertising may be subject to a failure to hire claim from Mark based on his disability if he does not receive an offer for the position. If Acme Advertising was open to hiring persons with educational qualifications that were less than a bachelor's degree, it should have better worded the job description, perhaps stating, "a candidate with a bachelor's degree in web design or comparable experience and education is preferable."

An employer may establish certain minimum job requirements that an applicant must be able to meet in order to be qualified for a position that he or she seeks. These minimum job requirements can be based on any number of criteria. Some of the criteria are:

  • Educational level;
  • Work experience;
  • Skills;
  • Expertise;
  • Licenses; and
  • Physical and mental standards necessary for job performance, health and safety.

Job qualifications may also include such subjective criteria as good judgment and ability to interact and communicate with co-workers. An employer cannot, however, incorporate or apply standards that screen out or tend to screen out individuals on the basis of disability unless they are job-related and consistent with business necessity.

In order to be job-related, qualifications and standards, tests, and selection criteria must be a legitimate measure of qualification for a specific job or position at issue. An employer may evaluate applicants on all functions of a particular job, essential or not. However, to the extent the job function is a marginal or nonessential function, the law requires that the employer evaluate an individual's qualifications based on only the essential functions of the job, with or without an accommodation.

Business Necessity Criteria

Tests and other selection criteria that exclude an individual with a disability because of his or her disability and do not relate to the essential functions of the job are inconsistent with business necessity. In addition, to validly exclude an applicant or employee with a disability from a particular job, a qualification standard must be incapable of modification through a reasonable accommodation that would allow an applicant/employee with a disability to perform the job.

Practical Example

Acme Medical Billing requires that all applicants for an office manager position have a valid driver's license because the company would like to have someone on board who can occasionally run some office errands. Janet, who is legally blind and does not have a driver's license, applies for the position. Acme Medical cannot refuse to hire Janet because running errands is not an essential function of the office manager position. Acme, therefore, cannot claim that having a driver's license is a business necessity and it cannot refuse to hire Janet simply because she does not have a driver's license.

Job Applications

An employer should keep in mind that employment applications can serve as evidence of a preemployment disability inquiry in a discriminatory hiring practices claim. See Medical Examinations/Inquiries; How to Create a Legally Compliant Job Advertisement. An employer may also use the application to show that:

  1. It treated all applicants similarly during the hiring process;
  2. The questions posed were not likely to elicit a disability-related response; and
  3. The language of the question is relevant to the job and consistent with business necessity.

Thus, an employer should be mindful of the questions that it poses on its applications. The following are examples of some things an employer should not ask on an employment application. An employer should not:

  • Ask whether an applicant will need a reasonable accommodation;
  • Ask an applicant to identify which ailments he or she has;
  • Ask an applicant to list his or her physical defects;
  • Ask an applicant whether he or she has a specific condition; or
  • Ask about an applicant's history, prior compensable workplace injuries or illnesses, or current treatment with prescription medications.

See Recruiting and Hiring > Interviewing and Selecting Job Candidates > Permissible vs. Impermissible Job Application Questions.

An employer that permits applicants to apply online might consider measures to make its online applications and processes accessible for an individual with a disability. The Job Accommodation Network provides a host of resources for employers on this topic. In addition, it may be considered a reasonable accommodation to allow an individual to submit an application on paper or via a telephone call rather than via an online form or process.

Worksite Accessibility

When conducting job interviews, an employer should ensure that the interviewing locations are accessible to applicants with disabilities, including visual, hearing, cognitive, learning and physical disabilities. For example, an employer should consider:

  • Are there designated parking spots close to the entrance of the interview location?
  • Is there an even pathway, ramps, handrails, wide door entryways, elevators, etc., for applicants with mobility impairments?
  • Are signs in appropriate locations and accessible to applicants with visual, learning and/or cognitive impairments?
  • Do the worksite's emergency evacuation procedures include measures for applicants with disabilities?
  • If applications must be filled out online or preemployment tests must be taken online, is the employer's website accessible to applicants with vision impairments or are there other means of accommodating applicants with disabilities?

Generally, the ADA prohibits an employer from engaging in preemployment disability-related inquires or medical examinations. For example, an employer may not ask if a job applicant has a disability or inquire as to the nature or severity of the disability. As a general rule, the employer may only ask these types of questions after extending the applicant a conditional offer of employment. For a thorough discussion on both preemployment disability-related inquiries and preemployment medical examinations, see Medical Examinations/Inquiries.

The purpose of prohibiting an employer from asking such questions at the preemployment offer stage is to provide applicants with an immediate safeguard against disability discrimination. Because employers evaluate employees through various methods, both medical and nonmedical, unless such a safeguard were in place, it would be difficult to ascertain whether an applicant was rejected because of his or her disability or for a nonmedical reason.

After a conditional offer of employment is made, but before the individual begins work, an employer may make a disability-related inquiry or require an individual to submit to a medical examination if it does so for all employees entering into a specific job category. A post-offer medical examination is permissible and appropriate only where the conditional offer of employment is genuine.

For a thorough discussion of preemployment, disability-related inquiries and medical examinations, including the distinctions between pre-offer and conditional offer scenarios, see Medical Examinations/Inquiries.

Requirements in Interview Process

An applicant who has a disability is responsible for requesting a reasonable accommodation for the interview process. The employer does not have to make an accommodation if it does not know or realize there is a need. While the employer should not inquire of an applicant's need for a reasonable accommodation where that need is not apparent, it should advise job applicants of the employer's general duty to accommodate qualified individuals with a disability. A simple statement in the Equal Employment Opportunity section of the application such as the following would suffice:

[Company name] is an equal employment opportunity employer. The Company's policy is not to discriminate against any applicant or employee based on race, color, sex, religion, national origin, age, disability or any other basis protected by applicable federal, state or local laws. [Company name] also prohibits harassment of applicants or employees based on any of these protected categories. [Company name]'s policy is also to comply with applicable laws ensuring equal employment opportunities to qualified individuals with disabilities, and pursuant to that policy, the Company will make reasonable accommodations for the known physical or mental limitations of an otherwise qualified applicant with a disability unless hardship or a direct threat would result therefrom. It is also [Company name]'s policy to comply with all applicable state and federal laws respecting consideration of unemployment status in making hiring decisions.

An employer should also be sure to put up signs in employment offices that advise job applicants of the employer's obligation. Such information should also be incorporated, at the very least, into job advertisements and the employer's handbook. See Preparing for the ADA; EEO Handbook Statement [15-19 Employees]: Federal; EEO Handbook Statement [20+ Employees]: Federal; Disability Accommodation Handbook Statement.

Preparing For and Conducting Interviews

Through training, an employer should advise interviewers of the goals and requirements of the ADA, especially in the preemployment arena. Interviewers should be made aware that bias and unfounded fears cannot be allowed to interfere with or impact the interview process.

The following are some important dos and don'ts for interviewers interviewing an applicant with a disability:

  • Do facilitate a comfortable environment.
  • Do treat an applicant with a disability the same way you would treat any other applicant.
  • Do make the interview format (including forms) accessible to individuals with disabilities.
  • Don't presume that applicants with disabilities need help.
  • Do be prepared to offer help if it appears reasonably necessary.
  • Don't presume that the employer will not be able to reasonably accommodate the applicant.
  • Do ask the applicant whether he or she will need a reasonable accommodation for the hiring process.
  • Don't ask the applicant about reasonable accommodations that he or she will need to perform the job if the applicant does not have a readily apparent disability.
  • Do allow the applicant to demonstrate or explain how he or she will perform the essential job functions despite the disability if he or she discloses the disability to you during the interview or if it is apparent.
  • Don't focus on the applicant's disability. Focus on the job-related issues.
  • Do be sure to fully understand the job for which the applicant is applying, as this will assist the interviewer in organizing the interviews and addressing all requirements.

Practical Example

Acme Furniture is interviewing candidates for a warehouse foreperson position. This position requires heavy lifting of up to 75 pounds. Justin shows up to the interview with a brace on his arms and what appears to be several missing fingers. In this situation, Acme Furniture can advise Justin of the job requirements (lifting up to 75 pounds) and ask him if he can fulfill these requirements. Acme should ask the same questions of all candidates. Also, since Justin's disability is obvious, if Justin says he does not think he can do the job, Acme Furniture can ask him if he could perform the job with a reasonable accommodation.

See Recruiting and Hiring > Interviewing and Selecting Job Candidates > Interviewing Applicants; Post-Offer (Conditional Offer) Medical Examinations and Disability-Related Inquiries.

ADA Recordkeeping

An employer that creates and maintains employee records must adhere to:

  • Record retention requirements; and
  • Confidentiality requirements.

See Medical Examinations/Inquiries; Employee Management > Recordkeeping.

Record Retention Requirements

An employer must maintain personnel records for one year under the ADA. The one-year period is counted from the date the record was made or the date of the personnel action involved, whichever is later. The following are some examples of personnel records that should be maintained:

  • Records of requests for a reasonable accommodation;
  • Application forms;
  • Records relating to hiring, promotions, demotions, transfers, layoffs or terminations;
  • Records of pay rates and/or other compensation terms, which are also likely subject to other recordkeeping requirements, such as those under the Fair Labor Standards Act, Age Discrimination in Employment Act, Equal Pay Act, and various state laws (See Employee Management > Recordkeeping; HR Strategy, Management and the Law > Labor and Employment Law Overview); and
  • Records of selection for training or apprenticeship.

Records of involuntarily terminated employees must be maintained for one year from the date of termination.

When a charge of discrimination or lawsuit is filed against an employer, the employer must maintain records of personnel actions until there is a final disposition of the charge or lawsuit.

Because some federal laws may overlap (e.g., laws governing the retention of payroll records), the law on retention of records may vary in certain jurisdictions, with some jurisdictions having longer record retention periods. Therefore, it is recommended that an employer consult with legal counsel when formulating a personnel record retention policy.

Record Retention Policy

An employer should consider establishing a record retention policy that has a well-defined schedule for identifying and maintaining records. The policy should take into account the employer's need to retain the records for, among other things:

  • Compliance with recordkeeping regulations;
  • Historical review;
  • Administrative and litigation claims; and
  • Governmental inquiries.

The policy should also establish a systematic procedure for record destruction, keeping in mind the period for which the records are:

  • Necessary to conduct the business;
  • Required to be kept by statute or government regulations; and
  • Relevant to pending or foreseeable governmental investigations, administrative charge proceedings or litigation.

See Document Retention Policy; Employee Management > Recordkeeping; HR Strategy, Management and the Law > Labor and Employment Law Overview.

Confidentiality of Records

Employee records, in general, should be considered confidential. Although access rights to personnel files may vary by jurisdiction, any medical information provided to an employer should be maintained in a separate medical file (i.e., not the employee's personnel file). For purposes of the ADA, access to an employee's medical file should be restricted and limited to certain persons. For more information on this topic, please see Proper Maintenance of Medical Information/Documents.

Health Insurance Portability and Accountability Act

On its face, the scope of health information protected by the Health Insurance Portability and Accounting Act (HIPAA) Privacy Rule appears to encompass all employee health information. The HIPAA Privacy Rule defines protected health information (PHI) to include, among other things, all information related to the past, present, or future health status of an identified individual and to treatment received by an identified individual. See Employee Benefits > Health Information and Privacy (HIPAA).

For employers, there is a very important exception to this definition: health information is not PHI unless it was created or received by the employer in its capacity as a "health plan" or covered "health care provider."

Generally, when an employer - in its capacity as an employer - requests or reviews the following medical information, the medical information is considered an employment record under HIPAA and is therefore not covered by the HIPAA Privacy Rule:

  • Medical information required by an employer to carry out its obligations under the ADA, the FMLA, and other laws;
  • Files containing information about occupational injuries, disability insurance eligibility, sick leave requests and justifications; and
  • Drug screening results, workplace medical surveillance and fitness-for-duty tests for employees.

The most important question when assessing whether health information is an employment record that is not subject to the HIPAA Privacy Rule is the role the employer played when it created or received the information. If the employer received health information prepared by an employee's physician, for example, in a medical evaluation of the employee's ability to perform the essential functions of his or her position as part of the ADA interactive process, that record would not be subject to HIPAA's Privacy Rule.

A practical concern that may arise is that employers may need to have an employee's authorization in order to obtain medical information from a health care provider. When a health care provider requires such an authorization, an employer may prefer to consult with its employment counsel regarding the content of an authorization form. See Employee Benefits > Health Information and Privacy (HIPAA).

Employer's Confidentiality Policies

An employer should consider establishing policies that protect the confidential nature of the information contained in an employee's personnel file and an employee's medical file. See Access to Personnel Files Handbook Statement. For example, an employer might establish a policy that only a designated member of the HR team, the individual employee's manager, and the employee have a right to see an employee's personnel file. The employer's policy might further explain that any medical-related documentation will be maintained separate from the employee's personnel file, in an employee medical file that will be maintained in a locked, secure location. The employer's policy should also provide that the information contained in the employee's medical will be available to:

  • The employee;
  • The designated member of HR (with responsibility for handling reasonable accommodation/medical issues);
  • Safety and first aid personnel, if necessary;
  • The employee's supervisor, on a need-to-know basis, should the supervisor need to know the medical information to facilitate an employee's assignment to restricted duties or a reasonable accommodation; and
  • To government officials as required by law.

See Employee Confidential Records and Information Policy.

ADA Interplay

Title I of the ADA provides an employee who is a qualified individual with a disability with the right to work free of discrimination, harassment or retaliation, as well as the right to request a reasonable accommodation to permit him or her to perform the essential functions of his or her job. The reasonable accommodation requirements of the ADA most frequently overlap with other employment-related obligations. The ADA regulations, technical assistance offered by the EEOC and developing case law provide guidance for employers on how to handle the reasonable accommodation process. See Duty to Accommodate and the Interactive Process.

Although guidance exists for how an employer should handle its reasonable accommodation obligations under the ADA, it does not always take into account all of the other employment-related obligations that employers have with respect to employees who seek a reasonable accommodation under the ADA. The sections below address some of the most common overlaps between the ADA and the various employment laws that employers administer on a daily basis.

The Family and Medical Leave Act (FMLA)

When an employee seeks FMLA leave for his or her own serious health conditions (as opposed to those of a parent, spouse or child), the employer must ensure that the employee not only receives any leave he or she may be entitled to under the FMLA, but also that the employer complies with its obligations under the ADA. Because the ADA applies to smaller employers than the FMLA does, an employer may have obligations under the ADA (e.g., an obligation to provide leave as a reasonable accommodation) even if it has no obligations under the FMLA.

A full, thorough discussion of the interplay between the FMLA, the ADA, Affordable Care Act, workers' compensation and other laws is included under The Bermuda Triangle Has Expanded: The FMLA's Intersection With the ADA, Workers' Compensation and More - Legal Insight. The topics addressed regarding the FMLA and ADA interplay include the following:

  • The intersection of the FMLA and the ADA;
  • Coverage under the FMLA and the ADA;
  • Employee eligibility for leave under the FMLA and the ADA;
  • The type(s) of leave and how much leave is available;
  • Payment of benefits while on leave;
  • Returning employees to work;
  • Reinstatement to employee's prior job;
  • Light duty issues;
  • Providing leave as a reasonable accommodation;
  • Maintaining confidentiality of FMLA and ADA paperwork;
  • Association discrimination;
  • FMLA leave to care for adult children with disabilities; and
  • Infertility and the FMLA and the ADA.

Pregnancy Discrimination Act

The federal Pregnancy Discrimination Act (PDA) prohibits discrimination based on pregnancy, childbirth or related medical conditions. The PDA provides that pregnant employees who are able to work must be permitted to work under the same conditions as other employees, and when they are not able to work for medical reasons, they are entitled to the same rights and benefits as other workers with temporary disabilities. In other words, pregnant employees must be treated the same as nonpregnant employees who are similar in their ability or inability to work. See Employee Management > EEO - Discrimination > Pregnancy - Pregnancy Discrimination Act.

While pregnancy itself is not considered a disability under the ADA, EEOC guidance explicitly recognizes that pregnancy-related impairments may nonetheless qualify as disabilities for purposes of the ADA, which may give rise to the need for reasonable accommodations. According to the Enforcement Guidance, "[a]n impairment's cause is not relevant in determining whether the impairment is a disability. Moreover, under the amended ADA, it is likely that a number of pregnancy-related impairments that impose work-related restrictions will be substantially limiting, even though they are only temporary." The EEOC identifies the following as potentially disabling pregnancy-related impairments:

  • Cervical insufficiency;
  • Pregnancy-related anemia;
  • Pregnancy-related sciatica;
  • Pregnancy-related carpal tunnel syndrome;
  • Gestational diabetes;
  • Abnormal heart rhythms;
  • Edema and abnormal circulation;
  • Prenatal depression;
  • Pelvic inflammation;
  • Symphysis pubis dysfunction; and
  • Pre-eclampsia.

Impairments may also arise from the interaction between pregnancy and an underlying health condition.

The Enforcement Guidance provides that a pregnant employee may be entitled to reasonable accommodations under the ADA for limitations resulting from pregnancy-related conditions that constitute a disability or for limitations resulting from the interaction of the pregnancy with an underlying impairment. The Guidance suggests the following examples of reasonable accommodations:

  • Redistributing nonessential job functions that the employee is unable to perform due to the disability;
  • Changing how job functions are performed (e.g., modifying standing, climbing, lifting or bending requirements);
  • Modifying workplace policies;
  • Purchasing or modifying equipment and devices;
  • Providing leaves of absence;
  • Modifying work schedules; and
  • Temporary assignment to a light-duty position.

This is not intended to be an exhaustive list of potential accommodations.

With respect to leaves of absence, an employer must allow pregnant employees to take leave on the same terms and conditions as others who are similar in their ability or inability to work. An employer's policy that restricts leave, e.g., a cap on sick leave use, might disproportionately impact pregnant women. The EEOC takes the position that an employer may need to provide leave in addition to its normal leave policy as a reasonable accommodation for an employee with a pregnancy-related disability. However, an employer may not compel an employee to take leave because she is pregnant, as long as she is able to perform her job, or prohibit an employee from returning to work for a set length of time after childbirth. Moreover, an employer must hold open a job for a pregnancy-related absence for the same length of time as jobs are held open for employees on sick or temporary disability leave.

In addition, a period of incapacity due to pregnancy or for prenatal care is considered a serious health condition under the federal Family and Medical Leave Act (FMLA). The FMLA allows eligible employees to take up to 12 weeks of unpaid leave in any 12-month period for a variety of reasons, including the employee's own serious health condition. If an employee takes FMLA leave for a serious health condition related to pregnancy, she may be allowed to take additional leave beyond the maximum FMLA leave as a reasonable accommodation under the ADA.

Finally, the Enforcement Guidance sets forth a set of best practices for implementing reasonable accommodations in the workplace.

  • Have a process in place for expeditiously considering reasonable accommodation requests made by employees with pregnancy-related disabilities and for granting accommodations when appropriate;
  • State explicitly in any written reasonable accommodation policy that reasonable accommodations may be available to individuals with temporary impairments, including impairments related to pregnancy;
  • Make any written reasonable accommodation procedures widely available to all employees, and periodically remind employees that the employer will provide reasonable accommodations to employees with disabilities who need them, absent undue hardship;
  • Train managers to recognize requests for reasonable accommodations, to respond promptly to all requests and to avoid assuming that pregnancy-related impairments are not disabilities;
  • Make sure that anyone designated to handle requests for reasonable accommodations knows that the definition of the term disability is broad and that employees requesting accommodations, including employees with pregnancy-related impairments, should not be required to submit more than reasonable documentation to establish that they have a covered disability. Reasonable means that the employer may require only the documentation needed to establish that a person has an ADA disability and that the disability necessitates a reasonable accommodation. The focus of the process for determining an appropriate accommodation should be on an employee's work-related limitations and whether an accommodation can be provided, absent undue hardship, to assist the employee; and
  • If a particular accommodation requested by an employee cannot be provided, explain why, and offer to discuss the possibility of providing an alternative accommodation.

Note, however, that the US Supreme Court called the EEOC Enforcement Guidance into question. On March 25, 2015, the Court issued its decision in Young v. UPS, +2015 U.S. LEXIS 2121. See Supreme Court Rules Against UPS in Pregnancy Discrimination Case. The Court rejected the employee's (and the EEOC's) position that the PDA requires an employer that accommodates nonpregnant employees with work limitations to accommodate pregnant employees who are similar in their ability or inability to work. The Court explained that just because an employer provides one or two workers with an accommodation does not mean it must provide similar accommodations to all pregnant workers, regardless of the nature of their jobs. The Court also specifically declined to rely upon the EEOC's Enforcement Guidance, finding it is too broad and at odds with the intent underlying the PDA. While the Court declined to impose a blanket accommodation requirement for pregnant employees, workplace policies that provide accommodations to some workers but exclude pregnant employees may nonetheless violate the PDA. An employer may defend its policies by showing it had a legitimate, nondiscriminatory reason for refusing to accommodate a pregnant employee, but the employee then has the opportunity to show that the reason was a pretext for discrimination.

In the wake of Young, the EEOC issued an updated version of its Enforcement Guidance. With regard to light duty, the Guidance now states that if there is evidence that pregnancy-related animus motivated an employer's decision to deny a pregnant employee light duty, it is not necessary for the employee to show that another employee was treated more favorably than she was. Absent such evidence, however, an employee must produce evidence that a similarly situated worker was treated differently or more favorably than the pregnant worker to establish that discrimination occurred. Prior to the Young decision, the Guidance required that employers structure light-duty policies so that pregnant employees would have the same access to light-duty work as is available to other employees with similar limitations on their ability to work, e.g., employees with work-related injuries. The bottom line of the updated Guidance is that an employer may be found to be in violation of the PDA and ADA if its refusal to accommodate places a significant burden on pregnant employees without having a sufficiently strong justification for the refusal.

An employer must also be aware that several states have laws imposing a duty of reasonable accommodation for pregnant employees.

Workers' Compensation Laws and Regulations

Workers' compensation laws have divergent goals from the ADA. Workers' compensation laws are designed as a no-fault means to provide wage benefits and medical care to victims of work-related injuries. Workers' compensation statutes are found in the laws of each state because the federal government has not passed a statute of general applicability that governs this area of the law. See Risk Management - Health, Safety, Security > Workers' Compensation.

Unlike the ADA, an employee's time away from work due to a workers' compensation injury is generally compensable under a workers' compensation insurance system or policy. The EEOC recognizes the interplay between the ADA and workers' compensation laws and has published the EEOC Enforcement Guidance: Workers' Compensation and the ADA.

Four areas of potential conflict that commonly arise between the ADA and various state workers' compensation systems include the following:

  1. The workers' compensation system's exclusive remedy provisions versus the remedial purpose of the ADA;
  2. A determination that an employee is permanently disabled for workers' compensation purposes, but a contention from the employee that he or she could return to work with a reasonable accommodation under the ADA;
  3. The ability of an employer to seek medical records or require medical examinations; and
  4. The overlap of workers' compensation and the ADA when returning an employee to work from workers' compensation leave.

Exclusive Remedy Provisions of Workers' Compensation Laws

Under the exclusive remedy provisions of workers' compensation statutes, the compensatory remedies available to an injured employee are deemed to be the exclusive remedy for any injury or accident that is covered by workers' compensation. Generally, the exclusive remedy provision prevents an employee from pursuing additional damages from an employer or workers' compensation insurer. Courts have held, however, that even where an individual has received workers' compensation benefits for an on-the-job injury, he or she may still be entitled to pursue remedies under the ADA because the exclusive remedy provisions of the workers' compensation statutes do not prevent the employee from pursuing a claim for discrimination, failure to accommodate, harassment or retaliation. See Prohibited Actions.

Practical Example

Rodney is a paraplegic who works in the quality control division of a small, family-owned manufacturing facility. Two months ago, Rodney approached the HR manager and requested that the manufacturing facility provide him with an automatic wheelchair (at a cost of $10,000) so that he might be able to travel throughout the facility faster than he currently does in his manually powered chair. The HR manager said that he would take Rodney's request to the president of the company when the president returned from vacation, but the HR manager has been preoccupied with other responsibilities and forgot to follow-up on Rodney's request.

Four days ago, Rodney was traveling around the facility in his manually powered chair and as he was traversing up a slight incline, he lost control of his wheelchair and slipped backwards into some machinery. As a result of his workplace accident, Rodney sustained a broken collar bone and is receiving workers' compensation benefits. Rodney believes that his injury could have been prevented had the manufacturing facility provided him with his reasonable accommodation of an automatic wheelchair. Even though Rodney is receiving workers' compensation benefits, the exclusive remedy provision of the state's law will likely not prevent Rodney from pursuing a failure to accommodate claim under the ADA and seeking relief related to his workplace accident.

Simultaneously Pursuing Disability and Workers' Compensation Claims

Another area of potential interplay between workers' compensation laws and the ADA concerns an employee who is determined to be unable to work under the workers' compensation laws, but who contends that he or she can return to work for his or her employer with a reasonable accommodation under the ADA. The contradictions in the legal status of the employee become apparent when he or she makes concurrent claims under both the ADA and the applicable workers' compensation law. Under workers' compensation programs, an employee represents that he or she is unable to work or is totally disabled. When an employee seeks a remedy under the ADA, he or she represents that he or she is a qualified individual with a disability who is able to work with or without a reasonable accommodation.

The EEOC takes the position that representations made in applications for Social Security, workers' compensation, disability insurance and other disability benefits should not be an automatic bar to ADA claims. See EEOC Guidance on the Effect of Disability Representations in Benefits Applications on ADA Coverage.

Some of the reasons for the EEOC's position include:

  • It is possible for an individual to meet the eligibility requirements for benefits under workers' compensation, Social Security and disability insurance programs as the definition of disability under these benefits is usually broader than the definition under the ADA and they do not consider whether an individual can work with a reasonable accommodation.
  • The purpose of the ADA is different than the purpose of other benefits programs and the weight that should be given to representations provided to workers' compensation, Social Security and disability insurance programs is dependent on the context and timing of the representations. Therefore, in evaluating whether someone is a qualified individual with a disability under the ADA, such evaluation should not be based on representations provided in connection with other benefits programs.
  • It is in the public's best interest to permit individuals filing ADA claims to move forward with their claims, despite the fact they may have filed a workers' compensation claim or other disability benefit, as individuals should not be forced to choose between applying for benefits and eradicating discriminatory conduct.

The case law on this topic varies depending on the facts and circumstances involving an individual's application for workers' compensation, Social Security or other disability benefits. The Supreme Court, in Cleveland v. Policy Management Systems Corporation, +526 U.S. 795 (1999), addressed the issue of whether the receipt of total disability benefits (under Social Security) precluded a claim under the ADA (i.e., prevented an individual from saying that he was a qualified individual with a disability). The Supreme Court held that a plaintiff could seek Social Security benefits for a total disability and also claim to be a "qualified individual with a disability under the ADA." The Supreme Court noted, however, that there may be circumstances where pursuing disability benefits (workers' compensation, Social Security, etc.) would be completely inconsistent with a contention that the employee was protected under the ADA.

An employer should consult with employment counsel regarding the impact that an employee's receipt of workers' compensation (or other disability-related benefits) may have on the employer's obligations to the employee under the ADA.

Medical Inquiries

Another area of potential conflict between the ADA and workers' compensation laws is the topic of medical inquiries and the confidentiality of employees' medical records. Under the ADA, an employer is generally prohibited from requesting medical records unless it is known that an accommodation will be necessary for the employee or an applicant discloses his or her need for an accommodation. Any post-offer medical inquiries must be tailored to the individual's ability to perform the job functions. Although an employer may receive information about prior occupational injuries in this post-offer stage, it must require all employees entering the same job category to provide the same medical information. See Medical Examinations/Inquiries; ADA Recordkeeping.

Under the ADA, after an employee commences work for an employer, any requests for medical examinations must be job-related and consistent with business necessity. Typically, an employer may not subject an employee seeking leave as a reasonable accommodation to a medical examination. Rather, an employer can request that the employee provide medical documentation relating to the request for leave. See Medical Examinations/Inquiries; Recruiting and Hiring > Preemployment Screening and Testing.

Under most workers' compensation laws, an employer has the right to require the employee to submit to one or more independent medical examinations at the employer's expense. See Risk Management - Health, Safety, Security > Workers' Compensation. These examinations may be used to determine whether:

  • The employee is eligible for workers' compensation benefits;
  • The employee should continue receiving benefits; or
  • The employee has reached maximum medical improvement.

Returning an Employee to Work from Workers' Compensation Leave

The ADA interplays with workers' compensation laws and employer policies regarding workers' compensation in two common scenarios:

  1. Fitness to return to work requirements; and
  2. Light duty assignments.

Fitness to Return to Work

Some employers require employees to be 100 percent fit in order to return to work after a workers' compensation leave. Such a position may be inconsistent with the ADA's reasonable accommodation provisions. An employer that has a 100 percent fit policy related to its workers' compensation program may wish to revisit this policy with its workers' compensation and employment counsel.

Light Duty Assignments

Under most workers' compensation statutes, an employee is not entitled to reinstatement to his or her former position, but rather must be returned to suitable work. When returning an employee from workers' compensation, employers must consider the implications of the ADA. If the ADA covers the employee's impairment, the employer should consider reasonable accommodations that may be necessary to return the employee to his or her pre-injury position. Moreover, an employer may return an employee to a light duty assignment in order to satisfy the suitable work requirement of a workers' compensation statute. In these circumstances, it is important to note that although a light duty assignment may be a temporary reasonable accommodation under the ADA and a possibility for returning someone to suitable work under workers' compensation, an employer is not obligated to create a permanent light duty position as a reasonable accommodation for an employee. See EEOC Enforcement Guidance: Workers' Compensation and the ADA; Risk Management - Health, Safety, Security > Workers' Compensation.

The Uniformed Services Employment and Reemployment Rights Act

The Uniformed Services Employment and Reemployment Rights Act (USERRA) provides certain leave, benefits and reinstatement rights to employees who serve in the uniformed services. USERRA applies to all public and private employers, without regard to the size of the workforce. See Employee Leaves > USERRA. Therefore, USERRA applies uniformly to employers and employees covered by the ADA and to those employers and employees not otherwise protected by the ADA. Although USERRA contains numerous substantive rights outside the scope of this section, reemployment of a servicemember with a disability may implicate the ADA.

Under USERRA, in addition to other requirements, an employer has specific obligations to those individuals returning from uniformed service leave with service-related disabilities or a disability that was aggravated by the uniformed service. Although both USERRA and the ADA impose a reasonable accommodation obligation on employers, the definition of who is considered disabled under each statute varies such that a returning servicemember may be disabled under USERRA but not under the ADA.

Who Is Disabled?

USERRA's regulations note that for purposes of USERRA, a returning servicemember may have rights under USERRA based on a service-related disability that is not permanent. The standards for assessing who is disabled are borrowed from the US Department of Defense and the US Department of Veterans Affairs definitions and standards. Moreover, USERRA's reemployment obligations apply to persons who served in the uniformed service on either active or inactive duty and sustained or aggravated an injury or illness. As defined under USERRA, uniformed service is broader than service in the armed forces and may include service, including as a reservist, in the National Guard. See Employee Leaves > USERRA; Understanding Your Employment Rights Under the Americans with Disabilities Act (ADA): A Guide for Veterans.

For purposes of the ADA, an individual is disabled if he or she:

  1. Has a physical or mental impairment that substantially limits one or more major life activities;
  2. Has a record of such an impairment (e.g., was substantially limited in the past, such as prior stint in a drug rehabilitation program); or
  3. Is regarded or treated by an employer as having an impairment, even if no substantial limitation exists.

See What Is a Disability?

Moreover, to qualify for protection under the ADA, an individual must be an individual with a disability must be qualified for the job, meaning that he or she can perform the essential functions of his or her position with or without a reasonable accommodation.

Practical Example

Suzanne was deployed in Iraq. During her deployment, she sustained a broken arm. She recently returned to the United States and is seeking reemployment with her pre-leave employer to her old position as a crane operator. Because the crane requires her to use both of her arms to operate it, she requests that her employer accommodate her with either a device to assist her in operating the crane or a light duty position for the next three months so that her arm may heal. Under USERRA, Suzanne is likely disabled. Under the ADA, however, Suzanne's temporary impairment does not likely rise to the level of a disability.

USERRA's Reemployment Obligations to Servicemembers With a Disability

Under USERRA, a servicemember with a disability is entitled to reemployment in the escalator position he or she would have attained had he or she not been on leave for uniformed service. USERRA provides a scheme to assess what position a servicemember with a disability should be reemployed to under the law's escalator provision:

  • If the disability is not an impediment to the servicemember's qualifications for the escalator position, then the disabling condition is irrelevant for USERRA purposes.
  • If the disability limits the service member's ability to perform the job, however, the regulations impose a duty on the employer to make reasonable efforts to accommodate the disability so that the employee can perform the position he or she would have held but for uniformed service.
  • If, despite reasonable accommodations, the employee is not qualified for that position due to his or her service-related disability, the employee must be reemployed in a position of equivalent seniority, status and pay for which he or she is qualified or could become qualified to perform. If this cannot be accomplished, the employee must be reemployed in a position that is the "nearest approximation" in terms of seniority, status and pay consistent with that individual's circumstances.

USERRA additionally requires an employer that has reinstatement obligations to an employee to train the returning employee to become qualified for a job to which he or she will be reemployed, whether or not the returning veteran has a service-related disability. See Employee Leaves > USERRA > Employer Obligations for Reinstatement. By comparison, the ADA does not require an employer to train an employee with a disability to become qualified for a job. Rather, the employee needs to be qualified for the job as a prerequisite to being covered by the ADA. Additionally, when considering what position an employee should be returned to if he or she was granted an extended leave of absence as a reasonable accommodation, the ADA does not have an escalator obligation similar to that imposed under USERRA.

Although USERRA requires an employer to fulfill certain reemployment obligations to a returning servicemember with a service-related disability, at some point USERRA's applicability ceases, and the normal reasonable accommodation protections of the ADA may continue to exist as to such individual.

Practical Example

John returns from active duty in Iraq with service-related post-traumatic stress disorder (PTSD). When his PTSD is active, he is unable to leave his home and requires isolation in a dark space with limited to no human interaction. Before he was deployed, John worked in the blasting division for a quarry. Although John can control his PTSD with medication and therapy sessions, his doctors have advised him that regularly being around explosions will aggravate his PTSD. John has returned to the quarry and requested that the quarry transfer him to an open administrative assistant position that is available at the quarry's corporate headquarters. The employer is considering the transfer, but recognizes that John does not have proficient word processing skills for the position. Under the ADA, even though John may be disabled, the quarry would not have an obligation to transfer him to the administrative assistant position because John does not have the requisite skills for the position. Under USERRA, however, the employer is obligated to provide training to John on word processing skills so that he may transfer to the administrative assistant position as a reasonable accommodation for his service-related disability.

Assume that the quarry provides John with training on word processing skills and that John is successfully reemployed by the quarry as an administrative assistant at the quarry's corporate headquarters. A year passes and John starts to experience symptoms of PTSD. He approaches the quarry with a request to take three weeks off to receive inpatient therapy for his PTSD at an out-of-state veteran's hospital. USERRA no longer applies to John's request for time off related to his treatment. Rather, the quarry should consider whether the time off may be a reasonable accommodation under the ADA and whether John may be entitled to time off under the FMLA to receive the in-patient therapy for his PTSD.

Practical Example

Linda returns from active duty in Afghanistan. While she was deployed, she broke her leg and it will need six months to heal. Linda seeks reemployment with Acme Company, for whom she worked before she was deployed, and asks if her schedule can be modified so that she can attend occupational therapy sessions every Wednesday afternoon. Linda is not likely disabled for purposes of the ADA, but she is likely disabled under USERRA - and under USERRA, Acme Company should make arrangements for Linda's reasonable accommodation request.

The Genetic Information Nondiscrimination Act

GINA prohibits discrimination in employment based on genetic information and family medical history. GINA also restricts an employer from acquiring or sharing such information. See Employee Management > EEO - Discrimination > Genetic Information - Genetic Information Nondiscrimination Act. Like the ADA, GINA applies to employers with 15 or more employees. An employer should take precautions to ensure that GINA obligations are met in the facilitation of the reasonable accommodation process and post-offer/preemployment medical inquiries.

An employer should ensure that any forms it uses to obtain medical information contain the EEOC's safe harbor language designed to minimize the likelihood that physicians will improperly disclose genetic information in the completion of those forms. The language to be included on those forms states:

THE GENETIC INFORMATION NONDISCRIMINATION ACT OF 2008 (GINA) PROHIBITS EMPLOYERS AND OTHER ENTITIES COVERED BY GINA TITLE II FROM REQUESTING OR REQUIRING GENETIC INFORMATION OF AN INDIVIDUAL OR FAMILY MEMBER OF THE INDIVIDUAL, EXCEPT AS SPECIFICALLY ALLOWED BY THIS LAW. TO COMPLY WITH THIS LAW, WE ARE ASKING THAT YOU NOT PROVIDE ANY GENETIC INFORMATION WHEN RESPONDING TO THIS REQUEST FOR MEDICAL INFORMATION. "GENETIC INFORMATION," AS DEFINED BY GINA, INCLUDES AN INDIVIDUAL'S FAMILY MEDICAL HISTORY, THE RESULTS OF AN INDIVIDUAL'S OR FAMILY MEMBER'S GENETIC TESTS, THE FACT THAT AN INDIVIDUAL OR AN INDIVIDUAL'S FAMILY MEMBER SOUGHT OR RECEIVED GENETIC SERVICES, AND GENETIC INFORMATION OF A FETUS CARRIED BY AN INDIVIDUAL OR AN INDIVIDUAL'S FAMILY MEMBER OR AN EMBRYO LAWFULLY HELD BY AN INDIVIDUAL OR FAMILY MEMBER RECEIVING ASSISTIVE REPRODUCTIVE SERVICES.

An employer should be sure that it is providing such notices to its own doctors who provide post-offer/preemployment physicals, fitness for duty/return to work physicals and the like. Additionally, in line with existing ADA requirements and related FMLA principles, an employer should maintain all employee medical information in separate, locked files, away from personnel information, and only share it on a need-to-know basis. This ensures that, to the extent genetic information is contained in either existing medical files or in documents received in the future, it is protected and not shared with others in violation of GINA. See Proper Maintenance of Medical Information/Documents; ADA Recordkeeping.

The Employee Retirement Income Security Act

The interplay between health and welfare employee benefits plans under the Employee Retirement Income Security Act (ERISA) and the ADA is complicated. See Employee Benefits > Compliance, Reporting and Disclosure Requirements. It is therefore advisable for an employer to consult with employee benefits and employment counsel who are well versed in these areas. A few general tenets regarding the interplay between ERISA employee benefits plans and the ADA include the following:

  • Under the ADA, a person with a disability cannot be denied insurance or subjected to different terms or conditions of insurance based on his or her disability alone, so long as the disability does not impose increased actuarial risk.
  • Under ERISA and the ADA, employer and insurers are not prevented from underwriting, classifying or administering risk (this provision narrowly permits certain insurance-related practices that ordinarily may be considered discriminatory against persons with disabilities) as long as any limitations on the benefits plan(s) are applied equally to persons with or without a disability.
  • Under the ADA, if an employer provides service retirement plan benefits, provisions of the plan (i.e., service requirements) cannot be different based on whether a participant has a disability.

The National Labor Relations Act

An employer with a partially or fully unionized workforce should be aware of the interplay between the ADA and the National Labor Relations Act (NLRA). Under Title I of the ADA, a covered entity includes a labor organization (i.e., union) or labor-management committee. See Overview of Disability-Related Laws. The primary area of interplay between the NLRA and the ADA in a unionized setting is the interactive process and the provision of reasonable accommodations.

Duty to Bargain vs. Informal Interactive Process

Under the ADA, an employer is expected to engage in an informal, interactive process with an employee to determine what, if any, reasonable accommodations may apply. Under the NLRA, however, an employer has a duty to bargain with the union over the terms and conditions of employment of the members of the union. See Labor Relations > Collective Bargaining Process. The National Labor Relations Board (NLRB) has held that the duty to bargain is inconsistent with direct dealing with individual employees regarding the terms and conditions of employment. As a result, if an employer engages in discussions with an employee regarding reasonable accommodations without affording the union an opportunity to be involved in the discussions, the employer may be in violation of the NLRA. On the other hand, if the employer allows the union to bargain over the terms of a reasonable accommodation, the EEOC may find that the employer did not engage in an informal, interactive process.

Duty to Bargain vs. Confidential Medical Information

Additionally, under the ADA, an employer must maintain medical information it receives in a confidential manner. If the employer bargains with the union over a reasonable accommodation, the confidentiality of medical information that the employer receives may become an issue as the union may request the information so that it can bargain with all pertinent information. And, of course, the union also has a requirement itself to provide reasonable accommodations to its members where required. Because this interplay between the ADA and NLRA is somewhat unsettled and varies depending on the factual circumstances of each case, it is recommended that an employer seek the advice of its labor and employment counsel before making a decision as to whether to share confidential medical information about an employee with a union during the interactive and reasonable accommodation process.

Collective Bargaining Agreement vs. Reasonable Accommodation

Under the NLRA, an employer generally cannot make changes to the terms of a collective bargaining agreement without violating the law. See Labor Relations > Collective Bargaining Process. As such, if an employer unilaterally changes the terms of a collective bargaining agreement as a reasonable accommodation for an employee, the employer may be violating the NLRA. This interplay between the ADA and the NLRA may arise in the context of an employer's reasonable accommodation for a qualified individual with a disability that is in contravention to the applicable seniority provisions in a collective bargaining agreement (e.g., reassignment to a vacant job, preferential scheduling, part-time scheduling or job restructuring). Although courts looking at the issue have held that a seniority system under a collective bargaining agreement makes an employee's request for a reasonable accommodation that alters the seniority system unreasonable, arbitration decisions on the topic have been mixed. To the extent that an employer is considering reasonable accommodations that may alter the terms of a collective bargaining agreement, the employer should seek the advice of its labor and employment counsel before agreeing to the accommodation.

State and Local Laws

Many states and some municipalities have laws that afford rights and protections to individuals with disabilities. When considering any issues relating to the ADA, an employer must check to see if state or local law also applies. See State Requirements.

Employer Policies

The ADA and numerous other laws with which it intersects at both the federal and state levels establish the floor of benefits and protections available to employees. In many situations, employer policies may provide more favorable terms that the employer will be bound to follow in the administration of employee leaves. The employer, with the assistance of legal counsel, should carefully review existing policies for compliance with state and federal law, as well as the employer's original intent in their drafting.

Examples may include policies on:

  • Leaves of all kinds;
  • FMLA leave;
  • Military leave;
  • Disabilities and accommodation;
  • Paid time off;
  • Workers' compensation;
  • Light duty;
  • Short-term and long-term disability;
  • Health and welfare benefit plans; and
  • Confidentiality.

Prohibited Actions

Failure to Make a Reasonable Accommodation to a Known Disability

The ADA places an affirmative duty on an employer to identify and provide a reasonable accommodation to an employee or applicant with a known disability who is qualified for the position he or she holds or desires. Individuals with disabilities need not use any magic words to request an accommodation and do not have to submit anything in writing. They do not even have to specifically request an effective accommodation to invoke the employer's obligation to engage in the interactive process regarding what may be a reasonable accommodation. Other people may also seek an accommodation for the individual with a disability. See Duty to Accommodate and the Interactive Process.

Once on notice of an employee's or applicant's need for an accommodation, the employer must make accommodations to the known limitations of an otherwise qualified individual with a disability. The employer may only deny a reasonable accommodation if providing the accommodation would pose an undue hardship to the employer or if providing the accommodation would pose a direct threat to the health and safety of other employees. Whether an undue hardship poses a significant difficulty or expense depends on the resources and circumstances of the particular employer in relationship to the cost or difficulty of providing a specific accommodation. See Undue Hardship; Not Qualified if Direct Threat to Health and Safety of Self or Others. The failure of an employer to provide a reasonable accommodation when it would be possible to do so may be a violation of the ADA for which the employer may be subjected to liability.

Practical Example

Tom works as a line manager for Acme Pipeline. Tom recently had a heart attack and now suffers from a disability. In order to accommodate his disability, Tom asks his supervisor for an adjustment in his work schedule so that he can start work at 7:00 a.m. rather than 5:00 a.m. Tom works with three other employees who cannot perform their jobs without him. As a result, if Acme grants Tom's requested accommodation, it would have to require the other three employees to adjust their hours, find other work for them to do from 5:00 a.m. to 7:00 a.m., or have the employees do nothing. Under these circumstances, Acme can likely deny Tom's request because it significantly disrupts the employer's operations. Acme should, however, discuss with Tom if there are other possible accommodations that would not result in undue hardship.

Prohibited Medical Examinations and Disability-Related Inquiries

The ADA's limitations and prohibitions on medical examinations and disability-related inquiries can be confusing for an employer. Medical examinations and disability-related inquiries typically take place in the following contexts:

  1. Pre-offer and/or post-offer (conditional offer) of employment;
  2. Fitness for duty;
  3. Justification for a leave of absence and/or an accommodation; and/or
  4. An employee's questionable ability to perform the essential functions of his or her job.

For a thorough discussion of the prohibitions and limitations related to medical examinations and disability-related inquiries, see Medical Examinations/Inquiries.

Additionally, although drug testing is not a medical examination under the ADA, an employer may not inquire about an applicant's past illegal drug use since such a question may lead to information about past drug addiction, which is protected under the ADA as a disability. An employer should also generally avoid asking questions related to major life activities such as walking, breathing, standing, etc., unless such questions are specifically connected to performing the job functions. See Recruiting and Hiring > Interviewing and Selecting Job Candidates > Questions About Health or Disability; Recruiting and Hiring > Preemployment Screening and Testing.

Discrimination Under the ADA

Disparate Treatment

The ADA prohibits discrimination in the workplace on the basis of an employee or a job applicant's 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.

An employee can prove a disparate treatment claim by providing direct evidence, such as a memo in which the employer states that employees with a specified disability are prohibited from taking part in training opportunities. Alternatively, an employee can produce indirect or circumstantial evidence to create an inference of discrimination in the workplace. Most often, an employee's disparate treatment claim is based on indirect or circumstantial evidence.

Practical Example

In an indirect or circumstantial evidence case, an employee with colitis who was suspended for three days without pay under his employer's attendance policy for being late to work as a result of a flare-up of his disability may present evidence that another employee without a disability was not disciplined for the same offense.

An employer may defend against a disparate treatment claim by showing that its employment decision with regard to the individual with a disability was based on a legitimate and nondiscriminatory reason and that the nondisabled person was not similarly situated to the individual with a disability, so that the individual with a disability was not treated differently because of said disability.

Practical Example Continued

Based on the indirect or circumstantial facts above, the employer may present evidence that its attendance policy requires an employee to report to the employer a foreseeable tardiness and that in the event of such a report, as long as tardiness is not habitual, the employee will not be disciplined under the policy. The employer might show that the employee with colitis never called in to indicate that he was going to be late for work, whereas the other, nondisabled employee called in to report to his employer that he would be late. Therefore, the employer would argue that its treatment of the employee with colitis was based on legitimate, nondiscriminatory reasons unrelated to his disability - namely, that he was late without providing the employer notice of his foreseeable tardiness.

An employee may rebut an employer's legitimate and nondiscriminatory reasons defense if he or she can show that the nondiscriminatory reasons for the employer's actions were pretextual (i.e., not true). See Employee Management > EEO - Discrimination > Legal Issues and Theories of Discrimination.

Disparate Impact

The ADA also 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 disproportionately adverse impact on individuals with disabilities. For example, a policy that requires employees returning from a leave of absence to be 100 percent fit for duty may have a disparate impact on 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 Employee Management > EEO - Discrimination > Legal Issues and Theories of Discrimination.

Discrimination in Benefits

Generally, an employer may not discriminate against an individual with a disability with respect to fringe benefits. That is, an employer must provide equal benefits to its employees. For benefits to be equal, the same coverage must be provided, on the same terms, to all similarly-situated employees. Benefits are equally provided when the premiums, deductibles, caps on coverage and waiting periods are the same. A distinction in a benefit plan is generally not disability-based or unequal if:

  • It is a broad distinction that applies to a multitude of dissimilar conditions; and
  • It constrains both individuals with and without disabilities.

A benefit plan is generally not equal and is disability-based if it singles out:

  • A particular disability;
  • A discrete group of disabilities; or
  • Disability in general.

For more information regarding the interplay between health and welfare employee benefits plans under ERISA and the ADA, see ADA Interplay. Because discrimination issues in employee benefits plans have both ADA and ERISA implications, it is advisable for an employer to consult with employee benefits and employment counsel who are well versed in these areas.

Association Discrimination

The ADA prohibits discrimination against employees known to have a relationship or association with an individual with a disability. For example, it is unlawful for an employer to terminate an employee because the employee associates with, or is related to, a person with AIDS. Similarly, an employer cannot make an employment decision based on an assumption that an employee will miss work in order to care for a family member with a disability. This does not mean, however, that absences caused by caring for a family member with a disability are always protected under the ADA. The ADA's prohibition on discrimination against employees with a relationship or association with an individual with a disability is intended to protect persons with close familial, social or physical relationships with individuals with disability.

Practical Example

Theresa has a son with asthma. Theresa recently applied for and was denied a promotion. Her supervisor's notes indicate that he did not promote Theresa because he believes she would miss work to care for her son and not work as hard as the promoted employee, Tony, who does not have a minor child with a disability. Theresa may have a claim of association discrimination.

Practical Example

Jenny, an employee for Acme TV, is not eligible for FMLA leave, but requests leave to care for her spouse who suffers from a disability. Under the ADA, Acme TV is not generally under a duty to accommodate Jenny's request for leave.

Harassment Under the ADA

Under the ADA, employees with disabilities are guaranteed equal treatment in the terms, conditions and privileges of their employment. The courts have interpreted this to include the right to work in a workplace free from disability-related harassment. A disability-related harassment claim employs the same analysis as that of other types of harassment cases. Specifically, an employee must prove that:

  1. He or she is a member of a statutorily protected class (e.g., that he or she is protected under the ADA);
  2. He or she was subjected to unwelcome verbal or physical conduct related to his or her disability;
  3. The unwelcome conduct complained of was based on his or her disability; and
  4. The unwelcome conduct either:
    1. Affected a term or condition of his or her employment; and/or
    2. Had the purpose or effect of unreasonably interfering with his or her work performance; and/or
    3. Created a hostile work environment (treatment that is sufficiently severe or pervasive to create a work environment that a reasonable person would consider intimidating, hostile or abusive).

Some potential examples of disability-related harassment include:

  • Singling out an individual with a disability by assigning that worker tasks beyond his or her limitations;
  • Using derogatory names, slang, insults and jokes; and
  • Ostracizing workers with disabilities.

See Employee Management > EEO - Harassment.

An employer should take allegations of disability-related harassment seriously and should address complaints of disability-related harassment in a manner consistent with its antiharassment policies and procedures.

Retaliation and Coercion

Similar to other equal employment opportunity laws, to establish a retaliation claim under the ADA, an employee must show that:

  1. He or she engaged in statutorily protected participation or opposition;
  2. He or she was subjected to a materially adverse employment action; and
  3. A causal connection exists between the protected activity and the adverse employment action.

See Employee Management > EEO - Retaliation.

The class of individuals who may bring retaliation claims is much broader than most other ADA claims. That is, employees who are not disabled, as well as employees with a disability, can sue their employers for retaliation, since an employee asserting a retaliation claim does not have to show that he or she has a disability in order to establish his or her claim.

In the context of the ADA, an employee may establish that he or she engaged in a statutorily protected activity (i.e., participation), if he or she requests a reasonable accommodation. As noted above, the employee is protected from retaliation related to his or her request, even if he or she does not meet the standard of a qualified individual with a disability.

Practical Example

Jack requests a special telephone to accommodate his hearing impairment. The telephone will cost approximately $300. The company grants Jack's request, but then terminates him shortly thereafter, explaining that his position as a sales representative has been eliminated. No other sales representatives lost their positions and Jack is wondering whether the termination is a result of his request for a reasonable accommodation. Jack may have a retaliation claim under the ADA.

Other examples of protected activity (i.e., opposition) under the ADA include complaining about alleged disability discrimination against oneself or others or threatening to file a charge of discrimination.

Practical Example

Betty Sue has a known disability of carpal tunnel syndrome and she wears hand braces to type. Recently, she went to HR to complain about her supervisor's treatment of her. She specifically noted that her supervisor tells her that she is old and decrepit and she said that she thinks he is discriminating against her based on her age and disability. HR informs Betty Sue that they will investigate her allegations, that she will not be retaliated against, and that she should report any retaliation. After HR interviews the supervisor, he promptly goes to Betty Sue and tells her that she better "watch her back" because he will not tolerate her going behind his, and that he will have her out of here in no time. The supervisor's conduct will likely be considered retaliation under the ADA.

Additionally, in some cases, third parties may also be protected from retaliation under the ADA. Some courts have found that the ADA's anti-retaliation provision also prohibits an employer from coercing or intimidating an individual who has aided or encouraged another individual in the exercise or enjoyment of their ADA rights.

Practical Example

John is good friends with Donald, who is a paraplegic. On behalf of Donald, John asks that Acme Manufacturing pave some potholes in the parking lot that are impacting Donald's ability to get to his car. A day later, John is called into the president's office and fired without explanation. As John engaged in protected activity by seeking a reasonable accommodation (i.e., an accessible pathway) for Donald and was fired the next day, he may be able to establish a retaliation claim under the ADA.

Disciplining Employees With Disabilities

Although an employee's disability typically has no bearing on performance or conduct, sometimes an individual's disability may contribute to performance or conduct problems. The ADA generally gives employers wide latitude to develop and enforce conduct rules. However, an employer's ability to discipline such an employee is tempered by the requirement that the rule for which the employee is disciplined be job-related and consistent with business necessity when it is applied to an employee whose disability caused him or her to violate the rule. See Employee Management > Employee Discipline.

Certain conduct standards that exist in all workplaces and cover all types of jobs should meet the standard of being job-related and consistent with business necessity, such as prohibitions on violence, threats of violence, stealing or destruction of property.

Enforcement Agencies

The ADA covers a wide range of disabilities and it addresses access to, among other things, the workplace (Title I), state and local government services (Title II) and places of public accommodation and commercial facilities (Title III). Responsibility for enforcing the various sections of the ADA is allocated among several government agencies, including the EEOC, Department of Justice (DOJ), Department of Transportation (DOT) and Department of Labor (DOL).

The EEOC

The EEOC is responsible for enforcing Titles I and II of the ADA. Title I of the ADA prohibits disability discrimination by an employer in all aspects of hiring and employment processes, e.g., job applications, hiring, termination, promotion, training, wage earning, or any other terms, privileges or conditions of employment. Title II of the ADA prohibits a state or local government from discriminating against individuals with disabilities with respect to the programs, services and activities offered by the public entity.

Any individual who believes that his or her employment rights have been violated may file a charge of discrimination under Title I or II of the ADA with the EEOC. Once a charge has been filed, the employer will be notified of the charge and provided an opportunity to respond to or resolve the charge. The EEOC also has the authority to file lawsuits on behalf of individuals and classes of individuals in order to further the purpose of the ADA. See Employee Management > EEO - Discrimination > Handling an EEOC Charge and EEOC Investigative Procedures.

The DOJ

The DOJ enforces the ADA in the following two areas:

  1. Programs, services and activities of state and local government (Title II); and
  2. Public accommodations and commercial facilities (Title III).

In Title III enforcement proceedings, the DOJ seeks to assure access rights (i.e., that a public accommodation is accessible based on the standard accessibility guidelines) for individuals with disabilities. Like the EEOC, the DOJ advances the goals of the ADA through investigating allegations of disability discrimination, filing lawsuits on behalf of individuals with disabilities, resolving disputes through negotiations with affected parties, and providing technical assistance to businesses, state and local governments, and individuals with rights or responsibilities under Title III of the ADA.

The DOT

The DOT, through the Federal Transit Administration, enforces the provisions of Titles II and III of the ADA for all programs, services and regulatory activities relating to transportation, including highways, public transportation, traffic management, automobile licensing and inspection, and driver licensing. The transportation rules of the ADA protect people with disabilities from discrimination in public transportation by organizations covered under Titles II and III of the ADA. This includes both publicly owned and privately owned transportation operations. It also includes the transportation operations of organizations whose primary function is providing transportation services, as well as those that provide transportation services as an incidental part of their other business functions.

The DOL

Two agencies within the DOL enforce portions of the ADA. First, the Office of Federal Contract Compliance Programs (OFCCP) has coordinating authority with the EEOC under the employment-related provisions of the ADA. The OFCCP enforces, for the benefit of job seekers and wage earners, the affirmative action and equal employment opportunity requirements of those employers who do business with the federal government. See Employee Management > EEO - Affirmative Action.

Second, the Civil Rights Center enforces Title II's application to labor- and workforce-related practices of state and local governments and other public entities.

Title I

An employee bringing a claim under Title I of the ADA has many of the same types of claims available to him or her as employees bringing claims under Title VII. Before filing a lawsuit including any of the claims identified below, an employee must first file a charge of discrimination with the EEOC or the relevant state agency alleging disability-related discrimination, harassment and/or retaliation. He or she must then receive a right-to-sue letter from the EEOC. Once this administrative requirement is completed, an employee may file any of the following types of claims under the Title I of the ADA:

  • Failure to make a reasonable accommodation to a known disability;
  • Prohibited medical examination or inquiry;
  • Disparate treatment;
  • Disparate impact;
  • Discrimination in benefits;
  • Association discrimination;
  • Harassment; and/or
  • Retaliation.

See Prohibited Actions; Overview of Disability-Related Laws; Employee Management > EEO - Discrimination > Legal Issues and Theories of Discrimination.

Title II

Although the language of Title II of the ADA is not clear with regard to whether it prohibits employment discrimination by public entities, some courts provide that under Title II, an employee of a public entity may file an employment-related complaint alleging violations of Title II directly in court (i.e., under Title II there is no requirement to first file an agency charge). See Overview of Disability-Related Laws.

Title III

Under Title III of the ADA, a private plaintiff is limited to only seeking injunctive relief (i.e., he or she may not seek monetary damages). A plaintiff need not file an administrative charge under Title III of the ADA. If the DOJ brings a lawsuit under Title III of the ADA, it may recover monetary damages - but not punitive damages - on behalf of individual victims of discrimination, and courts may assess civil penalties of up to $50,000 for first violations and up to $100,000 for any subsequent violation. See Overview of Disability-Related Laws.

Responding to EEOC and State Agency Complaints

Under the ADA, the EEOC is granted the same investigatory rights as it has under Title VII. When the EEOC receives a charge of disability discrimination, it will send a copy to the employer. In some cases the EEOC will request that the parties participate in mediation. However, absent consent to mediation (or if mediation fails), the EEOC will assign an investigator to the case and typically request that the employer provide a written answer to the charge of discrimination (i.e., a position statement).

Mediation

The EEOC strongly encourages mediation, but it cannot force either party to enter into mediation. Mediation is an informal, confidential process for resolving disputes by using a mediator (an impartial third party) who meets with the employer and employee/applicant. Both the employer and employee/applicant must consent to the mediation. Both parties can have an attorney present. More information on the EEOC's mediation process is available on the EEOC's website.

If the employer agrees to mediate, it should consider whether a pre-investigation settlement may serve the organization's business interest. If an employer decides to settle the matter through mediation, it should consider having a separate settlement agreement in addition to the EEOC's standard agreement.

Preparing a Response to the Charge of Discrimination

If the employer chooses not to mediate, or if mediation fails, the EEOC may ask the employer to:

  • Provide a written position statement setting forth the employer's position with respect to each allegation in the charge and providing any documentary evidence in support thereof (employers should take this seriously and consider consulting with employment counsel when preparing the document);
  • Respond to a request for information;
  • Permit an onsite visit (which can be an alternative to a request for information); and/or
  • Provide contact information for employees so that the EEOC can interview them.

See Employee Management > EEO - Discrimination > Handling an EEOC Charge and EEOC Investigative Procedures.

Before responding to a charge of disability discrimination, an employer should take into account certain considerations.

First, an employer should suspend any routine document retention or destruction policies and hold onto its documents to ensure preservation of relevant materials. This includes electronic files, such as email. In addition, an employer should determine who else in the company needs to be informed of the charge and advise those individuals to preserve any documents and electronic files relating to the charge.

Next, an employer should consider whether it wants to hire outside employment counsel to respond to the charge. The EEOC has broad authority to investigate a charge of disability discrimination. Therefore, in certain contexts, like when a charge contains "class" allegations or when a company-wide policy is at issue, the EEOC may expand the scope of its investigation. Having counsel who is well versed in the EEOC's procedures and authority may assist an employer in navigating through the investigation process. Moreover, retaining outside counsel when a state agency is involved may be helpful, as local counsel typically will know the ins and outs of the particular agency and/or its investigators. This can help with matters such as requesting extensions of time to respond or asking for some leeway on the production of documents. See State Requirements.

Regardless of whether an employer chooses to use employment counsel, when deciding how to respond to a charge and what to include in a position statement, an employer might consider:

  • Whether the employer is covered by the law under which the action was brought (e.g., for an ADA claim, does the employer have 15 or more employees that worked for it in a 20-week period either this year or during the prior year?);
  • What the individual's claims are (e.g., harassment, discrimination, a regarded as claim, associational discrimination, failure to accommodate);
  • The date the alleged discriminatory action or conduct took place;
  • Whether there are any witnesses to the alleged conduct (e.g., managers or supervisors involved in the employment decision and other employees where appropriate);
  • What, if any, documentation supports or negates the underlying claim (e.g., data, personnel files, payroll records, performance evaluations, written complaints, investigation files related to written or oral complaints, discipline files);
  • Whether there are any other potential sources of data (e.g., social media, security tapes, emails); and
  • Whether there are any flaws in the charge (e.g., did the conduct complained of occur outside of the statutory period allowed for an employee to file the charge?).

To assist in answering these questions, an employer should:

  • Interview relevant witnesses; and
  • Collect relevant documents and/or data (e.g., a supervisor's notes, disciplinary write-ups, emails).

When interviewing witnesses, an employer should weigh the pros and cons of having its internal staff (e.g., HR) interview the witnesses versus its in-house counsel or its outside counsel. An employer will need to weigh different factors to make this decision, such as:

  • What is most time efficient;
  • What is most cost efficient,
  • Whether there is a conflict of interest (e.g., if HR conducted an investigation into allegations of harassment, the HR official who conducted the underlying investigation - which may serve as a defense for the employer - may not be the best person to investigate the allegations in the charge); and
  • Whether preserving the attorney-client privilege related to certain interviews may be beneficial.

See Investigations and Litigation > Handling External Investigations; Employee Management > EEO - Discrimination > Handling and Investigating Discrimination Claims Internally.

Once an employer has collected written evidence and conducted interviews, it should evaluate its position with respect to the charge of discrimination based on the evidence that it has collected. In doing this evaluation, the employer may want to identify and consider:

  • The legitimate business reason for the employment action or decision;
  • Whether the decision-maker who took the alleged discriminatory action was the same person who hired the charging party, which may serve as proof that there was no animus against the protected characteristic (disability); and/or
  • Whether the employer fulfilled its obligations under the law (e.g., for a failure to accommodate claim, the employer should consider whether it engaged in the interactive process and, if so, whether it rejected the employee's accommodation request because it was unreasonable and posed an undue hardship on its business.

See Duty to Accommodate and the Interactive Process.

State Agency

A state agency's procedures may vary slightly, but the same strategic considerations will generally apply to its investigation of most charges. See State Requirements.

If an employer is a multistate employer, and the charge of discrimination is filed with a state agency that is not in the same state as the employer's principal place of business, the employer should consider hiring local outside counsel in the state where the charge is pending. It is useful to have local counsel, who likely handles other charges in front of the same investigatory body, assist in the process because they will likely be familiar with the agency process and may be able to secure extensions of time where needed.

No Retaliation for Filing or Participating in an EEOC charge

Among other things, the ADA prohibits retaliation against an employee for participating in an employment discrimination proceeding (the ADA also prohibits retaliation for opposing discrimination and this can include filing an internal complaint). The anti-retaliation protection applies to individuals filing a charge of discrimination with the EEOC. An employer is also prohibited from retaliating against someone closely related to or associated with the person filing the charge, if that person actively promotes or supports the filing of the charge. For example, if spouses are employed by the same employer and one spouse files an EEOC charge against the employer, the employer cannot retaliate against the other spouse if he or she speaks out to co-workers in support of the charge. See Employee Management > EEO - Retaliation.

If an employer receives an EEOC charge of discrimination from a current employee, it should take affirmative steps to ensure that the employee (and anyone associated with the employee) is not retaliated against for bringing the charge. An employer should speak to the employee's supervisor and any other individuals that manage the employee and instruct them not to retaliate against the individual. In addition, the employer should instruct the employee to immediately report any instances of retaliation to HR or through any other method set forth in the employer's policy (e.g., internal complaint hotline).

Litigation Under the ADAAA

Nearly 20 years after the initial enactment of the ADA, Congress amended the ADA. Under the ADA Amendments Act of 2008 (ADAAA), which took effect on January 1, 2009, Congress directly overturned a number of decisions from the Supreme Court and changed the litigation landscape of disability discrimination claims that arise after the effective date of the amendment.

Under the ADAAA, the concept of a disability is more broadly construed. For an employer, the most important impact of the ADAAA is that more people likely fall within the definition of disabled. For example, the ADAAA brings into the definition of disabled those individuals who have an impairment that is episodic or in remission if the impairment would substantially limit a major life activity when it is active, e.g., a person whose cancer is in remission or a chronic asthmatic.

Before the ADAAA was enacted, the focus of litigation under Title I of the ADA was often on whether the plaintiff was disabled. Generally, the ADAAA has had the impact of redirecting courts to focus on whether an employer has complied with its reasonable accommodation obligations. With more employees qualifying as disabled, an employer will be more heavily scrutinized for its efforts in the interactive process, providing accommodations and avoiding the perception of regarding employees as disabled. Therefore, having a good understanding of the duty to accommodate and the interactive process is important both from an employee management and employment litigation perspective. See Duty to Accommodate and the Interactive Process.

Future Developments

In May 2016, the Equal Employment Opportunity Commission (EEOC) published final regulations addressing application of the ADA to employer-sponsored wellness programs. These regulations will take effect on January 1, 2017, and will apply on the first day of the first plan year that begins on or after this date. An employer with an existing wellness program should review its policies and identify where changes may be needed to ensure compliance with the regulations.

Workplace wellness programs may be offered either as part of or separate from an employer-sponsored group health plan. Common features of wellness programs include onsite exercise facilities, weight loss and smoking cessation programs, coaching to help employees meet health goals and seminars offering information on various health-related topics such as nutrition and fitness. However, the wellness program must be voluntary, meaning that the employer neither requires participation nor penalizes employees who do not participate. See Wellness Programs.

The regulations provide that the ADA permits wellness programs, but emphasize that an employer may not use a wellness program to discriminate based on disability and must provide reasonable accommodations that allow employees with disabilities to participate in the wellness program.

Under the regulations, an employee health program, including any disability-related inquiries and medical examinations that are part of such a program, must be reasonably designed to promote health or prevent disease. A program is not reasonably designed if it:

  • Exists merely to shift costs to employees based on their health;
  • Is used only to predict an employer's future health costs;
  • Imposes unreasonably intrusive procedures, an overly burdensome amount of time for participation or significant costs related to medical exams; or
  • Collects health information but does not use it to design the program or to provide follow-up information or advice to participants.

Some employers offer incentives to encourage employees to participate in a wellness program, while others offer incentives that are tied to specific health outcomes. The regulations clarify that offering incentives to participate in wellness programs that are part of a group health plan and that include disability-related inquiries and/or medical examinations does not render the program involuntary. However, the total allowable incentive available under all programs may not exceed 30 percent of the total cost of employee-only coverage under the health plan in which the employee is enrolled (or 30 percent of the lowest-cost major medical self-only plan the employer offers, if the employee is not enrolled in a health plan). This provision is designed to comport with Health Insurance Portability and Accountability Act (HIPAA) and Affordable Care Act (ACA) regulations.

Notably, the incentive-related provisions of the regulations apply only to wellness programs that include disability-related inquiries and/or medical examinations. Wellness programs that are education- and fitness-based without requiring an employee to provide personal medical information to participate are not subject to the incentive rules.

In addition, the regulations permit a wellness program to include medical examinations or questions about an employee's health, for example, via a health risk assessment questionnaire. However, any medical information collected may only be disclosed to employers in aggregate form in a way that does not reveal the employee's identity. The information must be kept confidential in accordance with ADA requirements. An employer may not require employees to agree to the sale, exchange, transfer or other disclosure of medical information or to waive ADA confidentiality protections in exchange for an incentive or as a condition for participating in a wellness program.

An employer is also required to provide a notice to employees describing what medical information will be collected, with whom it will be shared, how it will be used and the measures taken to ensure confidentiality.

Additional Resources

How to Handle an Employee Returning from FMLA Leave Who May Need an ADA Accommodation

Reasonable Accommodation Policy

EEOC March 5, 2012 informal discussion letter

EEOC - Disability Discrimination

DOJ - ADA Home Page

Job Accommodation Network (JAN)

DOL's Return-to-Work Toolkit

DOJ's, Questions and Answers on the ADA and Persons with HIV/AIDS

EEOC Publication: Helping Patients with HIV Infection Who Need Accommodations at Work

Worksupport.com