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Employment Practices Toolkit

Americans with Disabilities Act Overview

Employer and Employee Coverage

The Americans with Disabilities Act (ADA) is a federal law that prohibits discrimination against individuals with disabilities in all areas of public life, including jobs and all public and private places that are open to the general public.  The ADA prohibits discrimination against individuals with disabilities, and it requires that such individuals be reasonably accommodated in some circumstances.

Employer Coverage

Employers with 15 or more employees are covered by the ADA. Depending on the circumstances, temporary employees may need to be included to determine whether the 15 employee threshold has been met.

Employee Coverage

The ADA applies to a person who has a physical or mental impairment that substantially limits one or more major life activities (like sitting, standing, or sleeping).

  • The ADA covers more than just people who are deaf, people who are blind, or people who use wheelchairs.
  • People who have physical conditions such as epilepsy, diabetes, HIV infection or severe forms of arthritis, hypertension, or carpal tunnel syndrome may be individuals with disabilities.
  • People with mental impairments such as major depression, bipolar (manic-depressive) disorder, and mental retardation may also be covered.

The ADA also protects a person with a record of a substantially limiting impairment, and it also protects a person who is regarded (or treated by an employer) as if s/he has a substantially limiting impairment.

However, the ADA only protects a person who is qualified for the job s/he has or wants.

  • The individual with a disability must meet job-related requirements (for example, education, training, or skills requirements).
  • S/he must be able to perform the job's essential functions (i.e., its fundamental duties) with or without a reasonable accommodation.

 

Employer requirements and the hiring process

Employer Requirements

Employers covered by the ADA have to make sure that people with disabilities:

  • Have an equal opportunity to apply for jobs and to work in jobs for which they are qualified;
  • Have an equal opportunity to be promoted once they are working;
  • Have equal access to benefits and privileges of employment that are offered to other employees, such as employer-provided health insurance or training; and
  • Are not harassed because of their disability.

Hiring Process

Employers may not ask questions about disability or use medical examinations until after making a conditional job offer.  Focus application and interview questions on non-medical job qualifications. An employer may ask a wide range of questions designed to determine an applicant's qualifications for a job.

Examples of what employers can ask:

  • Whether s/he has the right education, training, and skills for the position.
  • Whether s/he can satisfy the job's requirements or essential functions (describe them to the applicant).
  • How much time off the applicant took in a previous job (but not why), the reason s/he or she left a previous job, and any past discipline.

Examples of what employers cannot ask:

  • Questions about an applicant's physical or mental impairment or how s/he became disabled (for example: questions about why the applicant uses a wheelchair);
  • Questions about an applicant's use of medication; or
  • Questions about an applicant's prior workers' compensation history.

Where it seems likely that an applicant has a disability that will require a reasonable accommodation, an employer may ask whether s/he will need one. This is an exception to the usual rule that questions regarding disability and reasonable accommodation should come after making a conditional job offer.

After making a job offer, employers may ask any disability-related questions and conduct medical examinations as long as they do this for everybody in the same job category.

Employee medical information and confidentiality

Getting Medical Information from Employees

The ADA strictly limits the circumstances under which employers may ask questions about disability or require medical examinations of employees. Such questions and exams are only permitted where an employer has a reasonable belief, based on objective evidence, that a particular employee will be unable to perform essential job functions or will pose a direct threat because of a medical condition.

Sometimes an employer may have observed the employee's job performance or the employer may have received reports from others who have seen the employee's behavior. These observations or reports may give an employer a reasonable belief that the employee's ability to perform essential job functions is impaired by a medical condition or that the employee poses a direct threat because of a medical condition.

Confidentiality

With limited exceptions, an employer must keep confidential any medical information that it learns about an applicant or employee. Information can be confidential even if it contains no medical diagnosis or treatment course and even if it is not generated by a health care professional.  Information that is otherwise confidential under the ADA may be disclosed:

  • To supervisors and managers where they need medical information in order to provide a reasonable accommodation or to meet an employee's work restrictions;
  • To first aid and safety personnel if an employee would need emergency treatment or require some other assistance (such as help during an emergency evacuation) because of a medical condition;
  • To individuals investigating compliance with the ADA and with similar state and local laws; and
  • Pursuant to workers' compensation laws (e.g., to a state workers' compensation office in order to evaluate a claim) or for insurance purposes.

Employers must always comply with HIPPA too.

Reasonable Accommodation and Undue Hardship

Reasonable accommodations are adjustments or modifications provided by an employer to enable people with disabilities to enjoy equal employment opportunities.  Accommodations vary depending upon the needs of the individual applicant or employee. Not all people with disabilities (or even all people with the same disability) will require the same accommodation.  An employer must provide a reasonable accommodation if a person with a disability needs one in order to apply for a job, perform a job, or enjoy benefits equal to those offered to other employees. An employer does not have to provide any accommodation that would pose an undue hardship.  Undue hardship means that providing the reasonable accommodation would result in significant difficulty or expense, based on your resources and the operation of your business. 

An employer generally does not have to provide a reasonable accommodation unless an individual with a disability has asked for one.  A request can be a statement in "plain English" that an individual needs an adjustment or change in the application process or at work for a reason related to a medical condition. The request does not have to include the terms "ADA" or "reasonable accommodation," and the request does not have to be in writing, although an employer may ask for a something in writing to document the request.  A family member, friend, health professional, rehabilitation counselor, or other representative also may request a reasonable accommodation on behalf of an individual with a disability.

Once a reasonable accommodation is requested, the employer and the individual should discuss his/her needs and identify the appropriate reasonable accommodation. Where more than one accommodation would work, the employer may choose the one that is less costly or that is easier to provide.

ADA Accessibility Guidelines

The ADA also sets standards for access to public accommodations and commercial facilities for people with disabilities.  It prohibits discrimination based on disability in the full and equal enjoyment of the goods, services, facilities, privileges, advantages, or accommodations of any place of public accommodation by any person who owns, leases (or leases to) or operates a place of public accommodation.

Title III of the ADA covers public accommodations (i.e., private entities that own, operate, lease, or lease to places of public accommodation), commercial facilities (including office buildings, factories, and warehouses, whose operations affect commerce), and private entities that offer certain examinations and courses related to educational and occupational certification.  Places of public accommodation include doctors' offices.

The ADA contains two separate standards regulating building accessibility.  The first pertains to facilities existing before January 26, 1993, and requires removal of architectural barriers where removal is “readily achievable” and able to be carried out without much difficulty or expense.  Examples of barrier removal measures include installing ramps, making curb cuts at sidewalks and entrances, rearranging tables, chairs, vending machines, display racks, and other furniture, widening doorways, installing grab bars in toilet stalls, and adding raised letters or braille to elevator control buttons.

The second pertains to facilities constructed or altered after January 26, 1993, and requires that facilities be readily accessible and comply with the accessibility guidelines.  For example, at least 50 percent of all public entrances must be accessible by those with disabilities.  In addition, there must be accessible entrances to enclosed parking, pedestrian tunnels, and elevated walkways.  And, an accessible route must connect accessible public transportation stops, parking spaces, passenger loading zones, and public streets or sidewalks to all accessible features and spaces within a building.

State Law

For states and cities that have different or more stringent requirements than those discussed above, the state and city requirements must be followed.

Disclaimer

The information provided in this resource does not constitute legal, medical or any other professional advice, nor does it establish a standard of care. This resource has been created as an aid to you in your practice. The ultimate decision on how to use the information provided rests solely with you, the PolicyOwner.