ADA Issues in the Workplace: What Every Small Business Should Know

Date: April 17, 2017

The Americans with Disabilities Act provides broad protections for those persons who are “disabled” within the meaning of the Act. Signed into law by George H.W. Bush in 1990, the ADA rivals more well-known pieces of legislation, like the Civil Rights Act of 1964, both in terms of protections offered to targeted populations and its implications for employers.

The ADA generally prohibits employers from discriminating against employees or job applicants on the basis of disability. This prohibition includes all terms and conditions of employment, such as hiring, termination, promotion, compensation, training, and so forth. The ADA also requires that employers must provide “reasonable accommodations” to employees in the workplace.

Who is Covered by the ADA?

Disabled Persons. The ADA defines “disability” as a physical or mental impairment, a record of physical or mental impairment, or being regarded as having a physical or mental impairment. This last component serves to cover individuals who are perceived to have a disability, even if they in-fact lack a qualifying disability under the other provisions of the ADA. As explained in more detail here, this covers a broad range of conditions that impair or limit “major life activities”—such as walking, standing, sitting, reaching, lifting, bending, seeing, hearing, eating, reading, communicating, etc.

Subject Businesses. The ADA only applies to employers with fifteen or more employees. But even if you have fewer than fifteen employees, you should consider whether your state may have laws applying ADA standards to even smaller companies?

How does the ADA Affect Hiring Practices?

Application and Interview Phase. The obligations of the ADA begin prior to hiring. For example, the Equal Employment Opportunity Commission (EEOC) says that an employer cannot ask about certain topics during a job interview or on an employment application. Improper questions include: whether an applicant has a physical or mental impairment, how an applicant became disabled if their impairment is obvious (i.e. use of a wheelchair), whether the applicant takes medication for any health problem, or whether the applicant has a history of utilizing workers’ compensation benefits. But, the EEOC says that more circumspect questions are proper. For instance, you can ask whether an applicant has the right education, training and skills for a given position. You may also discuss in detail the essential functions of the position and ask whether the applicant can fulfill them. You might even ask how much time off the applicant took from their previous job, as long as you don’t ask why they took this time off.

After Making an Offer. After you extend a conditional offer, you may require a pre-employment medical examination so long as this is a standard requirement for all people at your company who do the sort of work that the applicant will engage in. If the medical examination reveals that the applicant could not fulfil the duties of the position, then you may permissibly rescind the job offer. For example, you might require an applicant to pass a physical exam prior to beginning a job that will entail frequent heavy lifting—but only if you always require applicants for this sort of position to undergo such an exam. If the physical exam reveals the applicant has a condition that prevents them from engaging in the sort of heavy lifting required, you might at that point rescind the offer. (And of course, if the exam somehow reveals a condition that would have no bearing on the applicant’s capacity to fulfill essential job functions, you must disregard that information. For example, if the test reveals that the applicant had HIV, you would be prohibited from rescinding his offer on that ground).

Warning We highly recommend consulting a trusted employment law attorney before initiating a policy requiring physical examination of job applicants, and especially prior to rescinding an offer based on an employee’s physical condition.

What’s a “Reasonable Accommodation” and When do I Need to Provide one?

The ADA requires that employers must provide reasonable accommodations to disabled individuals in certain circumstances. A reasonable accommodation is an action taken by the employer to modify or adjust some aspect of employment to enable an individual with a disability to do their job. Some examples of reasonable accommodations include allowing an employee with a chronic illness flexible work hours to accommodate their treatment schedule, providing a chair or stool for an employee who has difficulty standing for long periods of time, or a TTY/TDD device for an employee who is hard of hearing or deaf.

Once a Request is Made. Requests for accommodations are most often initiated by the employee, either orally or in writing. But they might also come from a medical representative or family member. This usually leads to a discussion between the employee and the employer about the needs of the employee and how a proposed accommodation would help. One way or the next, you must take a request for accommodation seriously and should respond within a reasonable timeframe. If you are unsure whether you need to accommodate a request, it is generally advisable to seek out legal counsel from a trusted employment law attorney.

Caution About Requesting Documentation. During this process, you may think it’s necessary to ask for documentation of the employee’s disability, but be aware – there are restrictions on the sort of documentation you can request, and whether you can ask for documentation at all. For instance, you cannot ask for documentation when both the disability and need for an accommodation are obvious, nor can you ask for documentation if the employee has already provided sufficient information to establish that they have an ADA disability and require an accommodation. Further, a request for documentation must be confined to the condition requiring the accommodation and cannot be a general request for medical records or a medical history. And of course, it is also important to be mindful of the fact that any documentation received from the employee about their disability should be kept confidential.

Considering the Request. Employers are only required to provide objectively “reasonable” accommodations. So what is reasonable? Well, the ADA says that an accommodation is unreasonable if it would impose an undue hardship on the employer. Simply put, an employer does not need to provide a specific accommodation if doing so would result in significant difficulty or expense. And of course, that may depends on your business in many cases. To be sure, an accommodation might be financially feasible for one company, but not another. Or for example, it might be feasible to provide an accommodation for a modified work schedule for an employee with certain office jobs, but perhaps not if the position really requires physical presence during critical hours. If you are unsure whether a request is reasonable or not, you should contact a trusted attorney.

Regardless of whether a proposed accommodation would constitute an undue hardship or not, there is no requirement that an employer must allow an “accommodation” that would assist the individual both on and off the job (i.e., a wheelchair or other medical device). Nor are employers required to remove or alter a job’s essential functions, lower production or performance standards, or excuse violations of company policies that are necessary for the operation of the business (i.e. sexual harassment, threats of violence, etc.). And of course, with or without an accommodation, the employee must be able to perform the essential functions for their position. Employers should not be expected to create new positions where they have no need.

What Should I do if I am Sued?

The EEOC is the remedy of first resort for many ADA employment claims. If someone files a complaint against your business you will receive a copy of the allegation from the EEOC and a request that you respond. If your business receives a charge from the EEOC (or an attorney representing your employee), you should take it seriously.

Be sure to make note of any dates or deadlines contained in the charge, and contact your attorney immediately. Your response to the EEOC will likely consist of a written statement (your side of the story) and supporting documents. The EEOC will then take the information contained in the complaint and the information that you provided, and will investigate the claim further.

If the EEOC finds that the claim has merit, it will invite you to conciliate the claim (informally settle with the employee). If you decline, the EEOC will likely proceed to file a lawsuit against your business in federal court. But, if the EEOC concludes that the claim does not have merit, then they will close their file on the matter. Still, the employee might then pursue a lawsuit against your business. Regardless of how an ADA discrimination claim arises, it’s important to talk to your lawyer early and to gather and preserve all documents relating to the alleged incident.

What Else Do I need to Know About the ADA?

In this post we’ve covered ADA issues in the workplace. But you should also know that the ADA requires places of public accommodation to ensure that their facilities are accessible to disabled persons. We provide guidance on these accessibility requirements here.

*This article does not provide legal advice. Employers are advised to retain counsel from a trusted attorney with experience in employment law.

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