Disabled Americans have been provided protection against workplace discrimination for almost 25 years. The Americans with Disabilities Act of 1990 (ADA) and the more recent Americans with Disabilities Act Amendments Act of 2008 (ADAAA) apply to employers of 15 or more employees.
The ADA defines “disability” as:
- a physical or mental impairment that substantially limits one or more major life activities;
- a record (or past history) of such an impairment; or
- being regarded as having a disability
The ADAAA refined this definition by clarifying that an impairment does not need to prevent or severely or significantly restrict a major life activity to be considered “substantially limiting” and that the term “substantially limits” should be construed broadly. It also established that, “with one exception (“ordinary eyeglasses or contact lenses”), the determination of whether an impairment substantially limits a major life activity shall be made without regard to the ameliorative effects of mitigating measures, such as medication or hearing aids.”
So what does this really mean for the typical employer?
- Evaluate hiring processes to ensure disabled individuals have the opportunity to apply for open positions. For example, if applicants are expected to complete and submit an online form to apply for an open position, what contingencies has your company made to enable a person with a visual impairment to apply for your job?
- Ensure that disabled employees are provided reasonable accommodations that will enable them to perform their jobs. For example, it may be reasonable to provide a person with diabetes additional regularly scheduled breaks to properly eat and monitor his blood sugar levels.
- Maintain any medical information you obtain from an employee in a strict, confidential manner. Specifically, any medical records kept on an employee must be maintained in a separate, locked, file.
As indicated previously, employers are expected to consider and make reasonable accommodations for applicants and employees. A reasonable accommodation is a modification to the job or work environment that will allow a disabled person to perform essential job duties or participate in the application process. Reasonable accommodations could include assigning non-essential functions to another team member, modifying an employee’s work schedule, purchasing a riser that will allow a wheelchair to slide under a desk, etc. There is an expectation on the part of the Equal Employment Opportunity Commission (EEOC), the agency which enforces the ADA and ADAAA, that employers will discuss and solicit ideas for reasonable accommodations with applicants or employee as needed.
The reasonable accommodation does not necessarily have to be the “best” option available; nor does it have to be expensive. Employers do not have to provide a reasonable accommodation if it would impose an undue hardship on the employer. The EEOC considers the following factors when determining whether or not an “undue hardship” is created:
- the nature and cost of the accommodation needed;
- the overall financial resources of the facility making the reasonable accommodation; the number of persons employed at this facility; the effect on expenses and resources of the facility;
- the overall financial resources, size, number of employees, and type and location of facilities of the employer (if the facility involved in the reasonable accommodation is part of a larger entity);
- the type of operation of the employer, including the structure and functions of the workforce, the geographic separateness, and the administrative or fiscal relationship of the facility involved in making the accommodation to the employer;
- the impact of the accommodation on the operation of the facility.
A number of resources are available to employers to guide them through the reasonable accommodation process. The Job Accommodation Network (JAN) was established by the government to provide employers with free, expert guidance on workplace accommodations and disability employment issues. Their website (http://askjan.org/) has resources suggesting accommodations for various disabilities.
Additional guidance on providing reasonable accommodations to employees and applicants can be found at: http://www.eeoc.gov/policy/docs/accommodation.html, http://askjan.org/Erguide/ErGuide.pdf, and http://www.eeoc.gov/facts/jobapplicant.html.
Under the law, employers are limited under what circumstances they are permitted to ask about medical conditions an individual may have.
Medical inquiries and exams during the application and interview process are not permitted. So, for example, a prospective employer is not permitted to ask applicants to complete a medical history form or inquire at all about medical conditions the individual may have. Additionally, the employer is not permitted at the applicant stage whether or not reasonable accommodations may be required in order for the person to perform the job.
Once a job offer has been extended but before the individual actually begins work, an employer is permitted to ask certain medical questions or require a medical exam before the individual begins work.
Once an employee begins work, the employer is generally not permitted to make any inquiries about the individual’s medical condition other than to support an employee’s request for an accommodation or if the employer believes the employee is unable to perform the job safely or successfully because of a medical condition.
In all cases, the law requires that employers keep medical records and information confidential and in separate medical files.
More information about the Americans with Disabilities Act and the ADAAA can be viewed at http://eeoc.gov/laws/types/disability.cfm.
Contributed by Christine Crews, SPHR, is Vice President of Human Resource Services for the Employers Association Forum, Inc. (EAF). EAF is a non-profit corporate membership-based association dedicated to serving the business and HR communities with world-class HR tools, hotlines & legal compliance, news & trends, surveys & economic data, benefits & insurance, risk management, training & consulting, and leadership & organizational development. HCCMO members receive discounted rates on all EAF classroom training at EAF’s training center in Longwood. Click here for currently scheduled programs: http://www.eafinc.org/online_store/training/HCCMO/training_programs.pdf.
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