By: Santiago J. Padilla, Esq.
To the many disabled people nationwide, the Americans with Disabilities Act ("ADA" or "the Act") is a promise of access that allows them to live productive lives defined by what they can do rather than by what they cannot. To the employers covered by the ADA, it can be a source of confusion and one ripe with pitfalls for even the most well-meaning employers. As an employment lawyer with more than 24 years of experience, I understand how complex the ADA can be. While it is no substitute for specific legal advice, the following is a brief discussion of the Act as it applies to employment matters.
What Is the ADA and What Employers Are Covered?
Title I is the portion of the ADA focused on the employment relationship. The original Act was signed into law in 1990 and it was amended in 2008, largely to clarify disputed issues and express disagreement with certain court rulings. The Act makes it illegal for private employers, government entities, labor unions, and employment agencies to discriminate against a qualified person with a disability in the employment arena. It applies to those employers with fifteen or more employees (note: state laws may apply to smaller employers).
Note: While this discussion focuses on Title I, other portions of the Act may apply to a particular employee in his or her relationship with customers and other individuals.
What is a Disability?
A wide-range of conditions can render someone an individual with a disability under the ADA. The primary definition of a disability is a physical or mental impairment which substantially limits at least one major life activity. Per the 2008 Amendments, the definition is read broadly to favor coverage. The 2008 Amendments also provide a list of major life activities, which include seeing, hearing, walking, standing, learning, communicating, and major bodily functions (ex. respiratory or circulatory functions). Except for ordinary glasses or contacts, impairment must be measured without regard for mitigating measures. For example, a person with a hearing impairment can qualify as an individual with a disability even if a hearing aid allows the person to hear as well as an average person.
An important note: Employers may not ask about disabilities during the interview process, but may ask if the person can perform the job duties with or without a reasonable accommodation. In general, the employee is responsible for notifying the employer of his/her need for an accommodation and employers are only held responsible for accommodating a disability of which they are aware.
What is a Qualified Person and What are Reasonable Accommodations?
The Act prohibits discrimination against a qualified person with a disability. A qualified person is defined as someone who can perform the job's essential functions with or without reasonable accommodation. Reasonable accommodations are changes provided by the employer to make it possible for the covered individual to have equal employment opportunities. Specific accommodations can include (but are not limited to) making currently used facilities readily accessible, restructuring/modifying jobs and work schedules (such as allowing time for medical appointments or a break for medication needs), and acquiring/modifying job-related equipment. The exact accommodation required is specific to the needs of the individual involved. Employers do not need to make accommodations that would cause the employer an undue hardship. An undue hardship is measured in light of the employer's size, resources, and other factors relating to the operation.
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If you have any questions regarding the Americans with Disabilities Act or other employment law issues, please do not hesitate to contact me, Santiago J. Padilla, Esq., either at 800-483-7197, at [email protected].