Ask the Expert

The Americans with Disabilities Act: What is your Responsibility
as an Employer?

Since the enactment of the Americans with Disabilities Act in 1990 (ADA) many employers remain confused about their responsibilities under the law.

Q. Are all employers required to comply with the ADA?

A. No. If a private employer has less than 15 employees, it is not required to comply. Employers with over 15 employees must comply. All state and local governments must comply with the ADA. Federal employers, federal contractors, and recipients of federal financial assistance fall under the Rehabilitation Act of 1973, not the ADA; however, the requirements for non-discrimination in employment are very similar.

Q. What employment practices are covered under the ADA?

A. The ADA makes it unlawful to discriminate in all employment practices including:

• Recruitment
• Pay
• Hiring
• Firing
• Promotion
• Job assignments
• Training
• Leave
• Lay-off
• Benefits
• All other employment related activities

The ADA prohibits an employer from retaliating against an applicant or employee for asserting his rights under the ADA. The Act also makes it unlawful to discriminate against an applicant or employee, whether disabled or not, because of the individual’s family, business, social or other relationship or association with an individual with a disability.

Q. Who is protected under the ADA?

A. To be protected under the ADA, an individual must have an impairment, a record of an impairment, or be regarded as having a substantial impairment that affects one or more major life activities, for example, walking, talking, learning, working, breathing, etc.

Q. Does the ADA interfere with my right to hire the most qualified applicant?

A. No. An individual with a disability must also be qualified to perform the essential functions of the job with or without reasonable accommodation in order to be protected. This means that the employee must:

• Satisfy the job requirement for educational background, employment experience, skills, licenses, and any other qualification standards that are job related; and
• Be able to perform those tasks that are essential to the job, with our without reasonable accommodation.

The ADA does not interfere with your right to hire the most qualified applicant, nor does it impose any affirmative action obligations. The ADA simply prevents an employer from discriminating against a qualified applicant or employee because of a disability.

Q. Can I require medical examinations or ask questions about an individual’s disability?

A. It is unlawful to ask an applicant whether he/she is disabled or about the nature or severity of a disability or to require the applicant to take a medical examination before making a job offer.

You can ask an applicant questions about their ability to perform job-related functions as long as the questions are not phrased in terms of a disability. You can also ask an applicant to describe or to demonstrate how, with or without reasonable accommodation; the applicant will perform job related functions.

After a job offer is made and prior to the commencement of employment duties, you may require that an applicant take a medical examination if everyone who will be working in the job category must also take the examination. You may condition the job offer on the results of the medical examination. However, if an individual is not hired because the medical examination reveals the existence of a disability, you must be able to show that the reasons for exclusion are job related and necessary for conducting business. You must also be able to show that there was no reasonable accommodation that would have made it possible for the individual to perform the essential job functions.

Once you have hired an applicant, you cannot require a medical examination or ask an employee questions about disability unless you can show that these requirements are job related and necessary for the conduct of your business. You may conduct voluntary medical examinations that are part of an employee health program. The results of medical examinations or information from inquiries about a disability must be kept confidential, and maintained in separate medical files. You may provide medical information required by State workers’ compensation laws to the agencies that administer such laws.

Q. What is my obligation to provide reasonable accommodation?

A. Reasonable accommodation is any change or adjustment to a job or work environment that permits a qualified applicant or employee with a disability to participate in the job application process, to perform the essential functions of a job, or to enjoy benefits and privileges of employment equal to those enjoyed by employees without disabilities. For example, reasonable accommodation may include:

• Acquiring or modifying equipment or devices
• Job restructuring
• Part-time or modified work schedules
• Reassignment to a vacant position
• Adjusting or modifying examinations, training materials or policies
• Providing readers or interpreters
• Making the workplace readily accessible to and usable by people with disabilities

Reasonable accommodation also must be made to enable an individual with a disability to participate in the application process and to enjoy benefits and privileges of employment equal to those available to other employees. It is a violation of the ADA to fail to provide reasonable accommodation to the known physical o4r mental limitations of a qualified individual with a disability, unless to do so would impose an undue hardship on the operation of your business. Undue hardship means that the accommodation would require significant difficulty or expense.

Q. Am I required to provide an accommodation even when it becomes
an undue hardship?

A. No. Undue hardship means that an accommodation would be unduly costly, extensive, substantial or disruptive, or would fundamentally alter the nature or operation of the business. Among the factors to be considered in determining whether an accommodation is an undue hardship, you must also consider whether funding for an accommodation is available from an outside source, such as a vocational rehabilitation agency, and if the cost of providing the accommodation can be offset by state or federal tax credits or deductions. You must also give the applicant or employee with a disability the opportunity to provide the accommodation or pay for the portion of the accommodation that constitutes undue hardship.

Q. Who is responsible for the enforcement of the ADA?

A. The provisions of the ADA which prohibit job discrimination are enforced by the U.S. Equal Employment Opportunity Commission. After July 26, 1992, individuals who believe they have been discriminated against on the basis of a disability can file a charge with the Commission at any of its offices located throughout the U.S. A charge of discrimination must be filed within 180 days of the discrimination, unless there is a state or local law that also provides relief for discrimination on the basis of disability. In those cases, the complainant has 300 days to file a charge.

The Commission will investigate and initially attempt to resolve the charge through conciliation, following the same procedures used to handle charges of discrimination filed under Title VII of the Civil Rights Act of 1964. The ADA also incorporates the remedies contained in Title VII. These remedies include hiring, promotion reinstatement, back pay, and attorney’s fees. Reasonable accommodation is also available as a remedy under the ADA.

Q. Am I obligated to provide a reasonable accommodation for an individual if I am unaware of his/her physical or mental impairment?

A. No. An employer’s obligation to provide reasonable accommodation applies only to known physical or mental limitations. However, this does not mean that an applicant or employee must always inform you of a disability. If a disability is obvious, e.g., the applicant uses a wheel chair, the employer “knows” of the disability even if the applicant never mentions it.

Q. What resources are available to answer questions about the ADA?

A.

• The Disability Program Navigator (DPN ) located in most One-Stop Career Centers serves as a resource for employers, employees, and job seekers. For employers, they can provide valuable information in understanding the rights of employees with disabilities and an employer’s obligation under the law. They can also provide guidance on designing policies and procedures that create a more inclusive work place. DPNs can also assist companies in the development of diversity plans and strategies designed to attract and retain a diverse workforce to meet their current and future staffing requirements. A list of DPNs is available. The DPN for Jefferson County is Karen Hoopes. She can be reached at 303-271-4722 or via email.
  
• ADA & IT Technical Assistance Centers provide information on the ADA law as well as advice on developing ADA compliant policies and procedures. 800-949-4232 or online
  
• Information on reasonable accommodations can be located by disability through the JAN network at 800-526-7234 or online. For information on ADA requirements affecting employment contact the Equal Opportunity Employment Commission at 800-669-4000.