by Employer Pass, on May 12, 2021 7:21:00 AM
The Americans with Disabilities Act (ADA) is a federal law that aims to address the needs of individuals with disabilities by prohibiting discrimination in employment, public accommodations, public services, and telecommunications. It was passed in 1990 and amended in 2008, requiring compliance from businesses with 15 or more employees. In many ways, ADA is similar to the Civil Rights Act, which criminalized discrimination based on race, national origin, religion, and gender. ADA just extends comparable protections to disabled qualified individuals.
In beginning to understand ADA eligibility issues, some key definitions apply. Disabled means having an impairment that substantially limits a major life activity, or a record of a substantially limiting impairment. A qualified individual under ADA is a person who, with or without reasonable accommodation, can perform the essential functions of a position.
While ADA is a federal law, be aware that similar state laws exist to afford those with disabilities protections. These state laws may have expanded definitions of disability and apply to companies with fewer than 15 employees. For instance, the Minnesota Human Rights Act applies to companies with even a single employee. The Connecticut Fair Employment Practices Act also applies to very small companies with three or more employees; it also has an expanded definition of disability that protects individuals with intellectual, learning, mental, or physical disabilities. So, it is vital for employers to ensure they understand requirements on both the federal and state levels regarding disabled individuals.
Hiring and the ADA
It is important to note that ADA does not impose any affirmative action obligations or prevent employers from hiring the most qualified individual. In regard to hiring, the law merely prohibits discriminating against applicants with disabilities. This does, however, influence a broad range of hiring practices, including in advertisements, applications, interviewing, and drug testing policies and procedures. The creation of uniform employee onboarding and hiring practices that reflect equal opportunities for disabled individuals in each of these areas is essential to maintain ADA compliance.
Job advertisements should be designed to clearly communicate the essential duties of positions and attract all qualified applicants, including those with disabilities. To do so, they should have the following qualities:
- Be widely accessible
- Have a solid job description, outlining essential duties
- Detail the job conditions
- Provide a nonspecific ADA statement regarding accommodation
Advertisements with these qualities not only meet ADA compliance standards but document what the job entails in such a way that can reach and attract all applicants with the required skills, education, and experience.
Applications require similar qualities to ensure all qualified applicants can both access and complete the application process. Applications must:
- Be widely accessible
- Provide a nonspecific ADA statement regarding accommodation
- Do not ask prohibited disability related questions
In this way, all applicants, including those with disabilities, do not have to reveal medical information that may bias an employer before qualifications are assessed and reasonable accommodations are discussed.
In interviewing, employers must continue to give disabled individuals fair consideration. The following parameters are needed in interviews to maintain ADA compliance:
- Flexibility in the details
- No inquiry into if accommodation is needed
- Do not ask prohibited disability related question
- Inform applicant of all necessary testing
Even if the employer is aware a disability exists, the interviewer should operate under the assumption that it has no bearing on potential performance. All interviewees are treated in a like manner.
Uniformity is also needed in regard to drug testing policies and procedures associated with the hiring process. Namely, drug testing policies and procedures should:
- Not prohibit lawful use of prescription drugs
- Be clearly written and consistently applied
- If applicable, do not discriminate against medical marijuana use
Drug testing policies and procedures that adhere to these principles do not bar disabled individuals who take medications from employment.
A pivotal part of ADA communication and compliance is engaging in an interactive process. According to the Equal Employment Opportunity Commission (EEOC), interactive process describes the discussion between an employer and employee regarding work limitations due to disability and what, if any, reasonable accommodation the employer might need to provide. Note that an employer has a duty under federal law to engage in such an interactive process in two situations: (1) an employee asks for an accommodation and (2) an employer knows an employee is disabled, experiencing workplace difficulties associated with that disability.
The EEOC provides some guidance in how to facilitate interactive process, that includes the following steps:
- Determine the essential functions of the employee’s job
- Establish the individual’s limitations
- Explore potential accommodations with the employee
- Select the most reasonable accommodation
There is some flexibility in the rules for this process. For instance, if the necessary accommodation to help a disabled employee find success is blatantly clear, a formal discussion is not required. Simply provide the reasonable accommodation.
In determining how employers can help those with disabilities be successful employees, further discussion of what reasonable accommodations are and how or when they are provided is needed. Simply put, reasonable accommodations are assistance or changes to a position or workplace that enable an employee to do his job despite having a disability. This could manifest as modifying a job to remove marginal – not essential – functions or, as a last resort, reassignment. Note that, if making adjustments constitutes an undue hardship for an employer, there is not a requirement to provide accommodation. If undue hardship exists, accommodations are not reasonable.
In some cases, unpaid, job-protected leave is considered a reasonable accommodation. Bear in mind that employers must allow disabled individuals to use accrued paid leave and to obtain additional unpaid leave, whether regular or ADA, for reasons related to a disability unless it creates undue hardship for the employer. This, however, can get a little tricky. ADA is not a substitute for other forms of unpaid leave, such as FMLA or state equivalents. There is also no guidance on low long an employer must provide an accommodation, including the granting of leave. In the event of prolonged leave use, employers must determine what is reasonable in the circumstances.
Even if an employee is receiving accommodations in the workplace, the EEOC admonishes that employees with disabilities must meet the same quantitative and qualitative standards as non-disabled employees in the same position. No employee is immune from disciplinary action when job standards are not met. To mitigate potential issues with discrimination claims associated with discipline, required production standards should be clearly communicated to all employees, bearing in mind that eliminating or reducing marginal functions may be a reasonable accommodation for disabled employees to meet such standards.
Avoiding Noncompliance Penalties
ADA compliance can become problematic when considered in tandem with other employment laws like the Family and Medical Leave Act (FMLA) and Workers’ Compensation (WC), especially without solidified leave management processes. FMLA is a federal law requiring covered employees with 50 or more employees to provide covered employees who meet work requirements with up to 12 weeks of leave. The work requirements for an employee to be able to request FMLA leave are:
- Have worked 12 months (doesn’t have to be consecutive) in a 7-year period
- Have worked a total of 1250 hours in the 12 months prior to requested leave
Workers’ Compensation has a slightly broader reach with the following basic principles:
- Applies to all employers and employees
- Provides work-related injury coverage
- Utilizes a no-fault system
- Provides medical and wage benefits
- No minimum service requirement.
The consideration of ADA, FMLA, and WC together is sometimes referred to as the Bermuda Triangle of employment law, as employers must be careful to comply with each.
There are steep penalties for ADA violations. These may be monetary in nature, requiring employer payment of attorney’s fees, back pay, civil penalties, court costs, compensatory damages, or restored benefits. Civil penalties, in particular, can be stymying. The first ADA violation costs employers $55,000 with each subsequent violation costing $110,000. Then, compensatory and punitive damages are additional. There may also be nonmonetary penalties associated with ADA violations, such as hiring, promotion, reinstatement, or providing what are deemed reasonable accommodations not previously offered.
While there can be difficulties in applying ADA in tandem with other employment laws at the federal and state levels, maintaining compliance chiefly rests in having solid hiring and management practices that are applicable to all. If in doubt, consult an attorney with a background in employment law.
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