Employment and the ADA
What should I do if my employer has discriminated against me because of my disability?
Complaints may be filed with either the EEOC or your state's designated human rights agency. Private lawsuits are also an option, but you cannot file a lawsuit until after the EEOC or your state's human rights agency has investigated your complaint and issued a notice that's referred to as a "Right to Sue Letter." You can contact the EEOC at: 800-669-4000 (Voice) 800-669-6820 (TTY) www.eeoc.gov
Is it all right for an employer to require an employee to get or change treatment for a disability to help or comply with a conduct standard?
No. Decisions about medications and medical treatment are generally personal medical decisions that take into account a number of factors about which the employer may not be aware or have the expertise to consider. Even if employers just want to help the employee, they should discuss the unacceptable conduct rather than medical treatments or medications to treat a disability.
Are all employers covered by Title I of the ADA?
No. Title I of the ADA only applies to private employers with 15 or more employees, all state and local governments, employment agencies, and labor unions. Some state and local laws apply to private employers with fewer than 15 employees. Check whether your state, county, or city has a human rights act or other law that prohibits discrimination against individuals with disabilities.
Does having a disability protect me from being fired or laid off?
No. Title I of the ADA protects employees from being discriminated against on the basis of disability. It is not a violation for an employer to fire, demote, not promote, reduce hours, or change any other conditions of employment for some other reason that is not related to your disability. The same situation exists with layoffs or reductions-in-force. If your discharge is not based on your disability, your employer has not violated the ADA.
As long as I meet the ADA definition of disability, an I covered by Title I?
Not necessarily. Because Title I is about employment, a person must meet the definition of disability and must also be qualified for the job. There are two components of being qualified. First, you need to have the skill, experience, education, and other job-related requirements for the position. For example, it's legal for an employer to require that a person applying for the job of a foreign language translator be able to translate a foreign language. The other component of being qualified, in terms of employment, is that you must be able to perform the essential functions of the job, with or without reasonable accommodation. In other words, getting a reasonable accommodation could make you qualified for the job. For example, a person who is deaf may be qualified to perform the essential functions of a customer service representative once s/he receives the opportunity to use a video relay service and specialized computer software as a reasonable accommodation.
So if the employer can show my accommodation request is an undue hardship, am I out of luck?
Not necessarily. Even if a particular accommodation would be an undue hardship on the employer, the employer must consider other options to try to find an accommodation that would not post an undue hardship. In the rare case that the cost of the accommodation poses an undue hardship, the employer should provide the cost up to the point that there is an undue portion of the cost. Likewise, if the employer gets money from an external source, like a state vocational rehabilitation agency, that would pay the entire cost of the accommodation, it cannot claim cost an undue hardship.
Is telecommunicating a reasonable accommodation?
Telecommuting may be a reasonable accommodation depending on the kind of job you have and whether the essential functions of the job can be performed off-site. The Equal Employment Opportunity Commission (EEOC) lists the following factors to be considered when deciding whether telecommuting is a reasonable accommodation: -Whether the employee can adequately supervise the employee; -Whether certain equipment or tools that cannot be replicated at home are required; -Whether face-to-face interaction with other employees is needed; -Whether in-person interaction with outside colleagues, clients or customers is necessary; and -Whether the job requires the employee to have immediate access to documents or other information located only in the workplace If an employer already allows telecommuting for employees, but requires employees to work for a specific number of months or years before becoming eligible for telecommuting, it might be a reasonable accommodation for the employer to waive its time requirement for employees with disabilities. Under these circumstances, the employer has likely already determined that employees are capable of performing their job duties while working from home. If, however, the nature of the job is such that physical presence at the workplace is necessary, then telecommuting might not be a reasonable accommodation.
What is a reasonable accommodation?
A reasonable accommodation is any kind of modification or adjustment to a job or to the work environment that makes it possible for a qualified applicant or employee with a disability to either participate in the job application process, enjoy equal benefits and privileges of employment, or to perform essential job functions.
What kinds of employment practices are covered by the Title I of the ADA?
All of them -- applying for a job, hiring, firing, promotions, compensation, training, recruitment, advertising, layoffs, leave, employee benefits, company functions, and all other benefits, conditions and privileges of employment are covered.
What are the "essential functions" of a job?
Essential functions are the basic job duties. ADA regulations say that the following things should be taken into consideration when determining whether a job function is essential: ADA Regulations say that the following things should be taken into consideration when determining whether a job function is essential: -The employer's judgment about which functions are essential; -Job descriptions that were written before a job was posted; -The amount of time spent performing the function; -The consequences of not requiring the person to perform the function; -The terms of a collective bargaining agreement; and -The work experience of others who have had, or currently hold, the same or similar positions.
Can you give me some examples of reasonable and unreasonable accommodations?
Examples of reasonable accommodations include: making the workplace accessible to and usable by an employee with a disability, restructuring a job, modifying work schedules, providing qualified readers for individuals who are blind, providing sign language interpreters to people who are deaf, providing periods of leave for treatment, or modifying equipment. Reassignment to a vacant position can also be a reasonable accommodation, although it is generally considered to be the last resort to be sought only if an employee cannot perform the essential job functions even with a reasonable accommodation. It is not reasonable for an employee to lower quality or quantity standards as a reasonable accommodation, and employers are not required to provide personal use items needed outside the workplace, such as eyeglasses, wheelchairs or hearing aids.
If an employee with a disability violates a workplace conduct standard, can the employee be disciplined?
Generally, yes, as long as the conduct standard is job-related and consistent with business necessity, and all other employees are held to the same standard. For example, if an employee who uses a wheelchair starts frequent arguments with his/her supervisor or co-workers, they may be disciplined because that conduct is not related to her disability. The ADA does not generally protect employees from the consequences of violating conduct standards, even when the violation is caused by the disability. However, employers may be required to provide reasonable accommodations to enable the employee to meet the conduct standards.
If I have a disability, can my employer evaluate my job performance using the same performance and conduct standards that they use for everybody else?
Generally, yes, as long as the same standards apply to everybody. An employer can evaluate performance standards, such as how well the employee performs both essential and marginal job functions and whether the employee is meeting basic job requirements like teamwork, customer service, work output, and product quality. Employers may also evaluate and enforce conduct standards like appearance standards, rules against destroying company property, rules about computer and equipment usage, and attendance requirements. Your employer may not, however, use standards that are not job-related if the standards have the effect of discriminating on the basis of disability.
When should I tell an employer that I have a disability?
It depends. Generally, disclosure is discouraged during the application process, unless you need an accommodation during that process. Once you are hired, you are not legally required to disclose a disability to your employer unless you request a reasonable accommodation. In light of the myths and stereotypes that still exist about people with disabilities, carefully consider the risks and benefits of disclosure before doing so.
Are there any limits on providing reasonable accommodations?
Keep in mind that the person requesting the accommodation must be otherwise qualified for the job and able to perform the essential functions of the job, with or without reasonable accommodation. Also, employers need to accommodate only individuals with known disabilities. Employers are not required to provide accommodations if doing so would be an undue hardship on the operation of the business.
What if an employer refuses to hire me because the HR person thinks it wouldn't be safe to have me around?
The ADA lets employers establish standards for determining whether an employee poses a direct threat to the health or safety of that individual or others. Direct threat is defined as a "significant risk of substantial harm to the health and safety of the individual or others if, and only if, that risk cannot be eliminated or reduced by reasonable accommodation." Deciding that an employee is a direct threat must be based on an individual assessment of that particular employee and must be based on the best available medical or other objective evidence, as opposed to generalizations, ignorance, stereotypes, fears, or patronizing attitudes. For example, it would violate the ADA if an employee with bipolar disorder is fired after disclosing his disability because a supervisor believes people with bipolar are dangerous. This reaction is based on myths and stereotypes rather than the best available evidence. When determining whether an employee presents a direct threat, the employer must determine whether any reasonable accommodations would eliminate or reduce the threat.
If I use illegal drugs or am an alcoholic, am I covered by the ADA?
The ADA treats individuals who use illegal drugs differently from individuals who misuse alcohol. People who are currently engaging in the use of illegal drugs are specifically excluded from the ADA definition of "qualified individual with a disability." Therefore, employers may take action against the employee on the basis of drug use without violating the ADA. However, a person who used illegal drugs in the past but went through a rehabilitation program is considered to be a person with a disability and is protected from discrimination. Alcoholism is treated differently under the ADA. A person who currently uses alcohol is not automatically denied protection. A person who has alcoholism may be considered to be a person with a disability depending on whether the person has an impairment that substantially limits a major life activity. If you have alcoholism and meet the ADA's definition of disability, you may be entitled to a reasonable accommodation, such as leave for treatment or therapy. It is not a reasonable accommodation to allow an employee to consume alcohol, or be under the influence of alcohol, at work if this violates legitimate workplace rules. An employer may discipline or even fire you if your alcohol use affects your job performance or conduct. And of course, your employer may have a drug-free and alcohol-free workplace policy.
Can an employer make me have a medical exam or ask questions about my disability?
The answer depends on where you are in the employment process. If you are a job applicant, the potential employer may not ask you to take a medical exam or ask any disability-related questions. The employer may ask questions about your ability to perform specific job functions, including asking you to describe or demonstrate how you would perform those functions. If you have a gotten a conditional job offer, the employer may require you to take a medical exam or answer disability-related questions if the employer requires the same thing of all employees in the same job category. In fact, the employer can even condition an offer of employment on the results of the medical exam, again, so long as the exam is required for everybody. If you are a current employee, the employer may require you to undergo a medical exam only if it is job-related and consistent with business necessity. The employer may also ask questions about your ability to perform the functions of a job.
What is an "undue hardship?"
Undue hardship is an "action requiring significant difficulty or expense." Looks at factors like: - Nature and cost of the accommodation - Overall financial resources of the employer - Structure of the business - Cost alone is rarely found to be an undue hardship, except possibly for very small employers. - If an accommodation has a significantly negative effect on the business that may be an undue hardship
Is an employer allowed to require the same quantitative and qualitative requirements for performance as it requires for employees without disabilities?
Yes. An employee with a disability should meet the same production standards as well as all other employees doing the same job. Employers do not have to lower production standards as a reasonable accommodation. However, a reasonable accommodation might be required to assist employees with disabilities in meeting the same production standards. For example, an employer may require a secretary who is blind to type 70 words per minute as long as the requirement is the same for all secretaries. While the employer has no obligation to lower this standard, it may be required to provide certain voice-activated software to enable the employee with a disability to meet this standard.
As long as my office is accessible, do the other parts of the office, like the kitchen and break room, have to be accessible?
Yes. Employees with a disability should have access to areas where they work, as well as non-work areas, such as break rooms, lunch rooms, training rooms, kitchens, and restrooms, used by other employees, unless providing access would be an undue hardship. Even events like conferences and parties held out of the office should be accessible.
