Overview: The Equal Employment Opportunity Commission (EEOC) is cracking down on employment discrimination against individuals with disabilities (a more preferred term than “disabled employees”) under the Americans with Disabilities Act (ADA). An individual is considered disabled under the ADA if he or she: (i) has a physical or mental impairment that substantially limits one or more major life activities; or (ii) has a record of such an impairment; or (iii) is regarded as having such an impairment. Employers need to apply this definition broadly and are wise to focus more on the interactive process and the duty to accommodate the individual. In addition, because many states and municipalities have laws that define what constitutes a disability, employers should check their state/local law to ensure full compliance.
Employers should also ensure they have the required ADA poster and supplement in locations that can be easily seen by applicants and employees and that their policies, programs and practices follow the purpose and language of the amended ADA.
Trends: With the passage of the ADA Amendments Act (ADAAA), many more individuals fall within the ADA's definition of disability. The growing definition of disability is another reason why an employee who has a disability wants to be considered an individual with a disability, as opposed to being a disabled employee. Therefore, employer focus on the interactive process and reasonably accommodating employees - and not on whether the individual is disabled - is increasingly paramount.
"No fault" leave or attendance policies under which employees are automatically terminated after being on leave for a specific period of time can be considered a violation of the ADA if the policy or practice fails to incorporate an interactive process to assess whether additional leave may be a reasonable accommodation under the ADA. The EEOC has targeted several employers - to the tune of millions of dollars - challenging such no-fault leave policies.
Author: Melissa S. Burdorf, JD, Legal Editor
Updated to reflect an amendment to the Florida Civil Rights Act.
Virginia employers with five or more employees should include this statement in their handbook to educate employees about the availability of reasonable accommodations for pregnancy, childbirth and related medical conditions and to comply with a handbook policy requirement.
Updated to reflect amendments to the Virginia Human Rights Act regarding pregnancy accommodations, effective July 1, 2020.
Updated to reflect the change of the term marijuana with cannabis under state law, effective July 1, 2020.
Updated to reflect forthcoming law regarding pregnancy accommodations.
Updated to reflect amendments to the Virginia Human Rights Act regarding lactation accommodations, effective July 1, 2020; and to reflect the forthcoming Tennessee Pregnant Workers Fairness Act.
Updated to reflect EEOC guidance on antibody testing.
Updated to reflect additional EEOC guidance regarding discrimination based on national origin, age and pregnancy.
HR guidance on handling employees with disabilities under the Americans with Disabilities Act (ADA). Support on the many regulations of the ADA.