The Americans with Disabilities Act (ADA) prohibits disability discrimination in employment. It also requires employers to provide reasonable accommodations to allow employees with disabilities to do their job. The ADA was amended in 2008, when the ADA Amendments Act (ADAAA) was passed. The purpose of the ADAAA was to make clear that Congress intended for the ADA to be interpreted generously, in order to protect people with disabilities from discrimination on the job. This article answers some common questions about the ADA, as amended by the ADAAA.
Q. Which employers are covered by the ADA?
A. The ADA applies to private employers with at least 15 employees, employment agencies, labor organizations, and joint labor-management committees. Local government employers are also required to follow the ADA. State employers are required to follow the ADA, but their employees may not sue them for money damages for violating the law. Federal governments don't have to comply with the ADA, but they must follow a similar law (the Rehabilitation Act of 1973).
Q. What practices and activities are covered by the ADA?
A. The ADA prohibits discrimination in every aspect of employment, from recruiting, interviewing, and hiring, to promotions, time off, benefits, wages, and layoffs and terminations.
Q. Who is protected against employment discrimination?
A. The ADA protects qualified individuals with a disability who are current or prospective employees of a covered employer. Part-time employees and probationary employees are protected, but independent contractors are not.
As a legal matter, an employee has a disability if the employee:
- has a physical or mental impairment that substantially limits a major life activity
- has a record or history of such an impairment, or
- is incorrectly perceived by the employer as having such an impairment.
Major life activities include walking, seeing, hearing, sleeping, eating, performing manual tasks, thinking, and working. They also include major bodily functions, such as the proper functioning of the immune system, normal cell gowth, and digestive, neurological, brain, respiratory, circulatory, and reproductive functions. For example, a person who has diabetes would likely have a disability, because it's an impairment that disrupts the proper functioning of the endocrine system. Even a person whose diabetes was well-controlled would most likely have a disability under the ADA: The ADAAA requires courts to assess an impairment's effect on a person without regard to medications or other measures the person might be using to treat the condition.
Q. What makes a person with a disability "qualified" for a position?
A. A person is qualified if both of the following are true:
- The person satisfies the prerequisites for the position (for example, the educational requirements, employment experience, skills, and licenses necessary to do the job).
- The person is able to perform the essential functions of the position, with or without a reasonable accommodation from the employer.
Q. What is an essential job function?
A. The essential functions are the fundamental -- not marginal -- duties of a job. A job duty counts as an essential function is the job exists to perform that function (for example, a pilot flies a plane); only a few employees can perform the function; or the function is so highly specialized that the employer hires people precisely because of their ability to perform it.
To determine whether a job duty qualifies as an essential function, the Equal Employment Opportunity Commission (EEOC) says courts should consider these factors:
- written job descriptions prepared before advertising or interviewing for the position
- the employer's opinion as to whether the function is essential
- the amount of time people who hold that job must spend on the function
- the consequences of hiring someone who could not perform that function
- the terms of any applicable collective bargaining agreement, and
- the work experience of people who have held and currently hold the job.
Q. Does an employer have to give preference to a qualified applicant with a disability over other applicants?
A. No. An employer is free to select the most qualified applicant.
Q. What is a "reasonable accommodation?"
A. A reasonable accommodation is assistance or changes to a position or workplace that will enable an employee to do his or her job despite having a disability. Under the ADA, employers are legally required to make reasonable accommodations for employees with disabilities, unless doing so would be an undue hardship.
Q. What kinds of actions are required to reasonably accommodate applicants and employees?
A. Examples of reasonable accommodation include making existing facilities accessible to employees with disabilities; restructuring a job; modifying work schedules; acquiring or modifying equipment; providing qualified readers or interpreters; or appropriately modifying examinations, training, or other programs. Employers are not required to lower quality or quantity standards in order to make an accommodation, nor are they obligated to provide employees with personal use items, such as glasses or hearing aids.
Q. Must employers be familiar with the many types of disabilities to know whether or how to make a reasonable accommodation?
A. No. An employer is required to accommodate only a "known" disability of a qualified applicant or employee. The requirement generally will be triggered by a request from an individual with a disability, who frequently can suggest an appropriate accommodation. Accommodations must be made on an individual basis, because the nature and extent of a disabling condition and the requirements of the job will vary in each case. If the individual does not request an accommodation, the employer is not obligated to provide one. If a person requests, but cannot suggest, an appropriate accommodation, the employer and the individual should work together to come up with one. There are also many public and private resources that can provide assistance.
Q. May an employer ask whether a prospective employee has a disability?
A. An employer may not make a pre-employment inquiry on an application form or in an interview as to whether, or to what extent, an individual has a disability. The employer may ask a job applicant whether he or she can perform particular job functions. If the applicant has a disability known to the employer, the employer may ask how he or she can perform job functions and whether an accommodation would be needed. A job offer may be conditioned on the results of a medical examination, provided that the examination is required for all entering employees in the same job category regardless of disability, and that information obtained is handled according to confidentiality requirements specified in the ADA.
Q. Does the ADA take safety issues into account?
A. Yes. The ADA expressly permits employers to establish qualification standards that will exclude individuals who pose a direct threat -- a significant risk of substantial harm -- to the health or safety of that person or of others, if the risk cannot be lowered to an acceptable level by reasonable accommodation. However, an employer may not simply assume that a threat exists; the employer must establish through objective, medically supportable methods that there is a genuine risk of substantial harm. By requiring employers to make individual judgments based on reliable medical or other objective evidence rather than on generalizations, ignorance, or stereotypes, the ADA balances the interests of people with disabilities against the legitimate interests of employers in maintaining a safe workplace.
Q. Can an employer refuse to hire an applicant or fire a current employee who is illegally using drugs?
A. Yes. Individuals who currently engage in the illegal use of drugs are specifically excluded from the definition of a "qualified individual with a disability" protected by the ADA.
Q. Is testing for illegal drugs permissible under the ADA ?
A. Yes. A test for illegal drugs is not considered a medical examination under the ADA; therefore, employers may conduct such testing of applicants or employees and make employment decisions based on the results. The ADA does not encourage, prohibit, or authorize drug tests.
Q. What is discrimination based on "relationship or association?"
A. The ADA prohibits discrimination based on relationship or association in order to protect employees from actions based on unfounded assumptions that their relationship to a person with a disability would affect their job performance, and from actions caused by bias or misinformation concerning certain disabilities. For example, this provision would protect a person with a disabled spouse from being denied employment because of an employer's unfounded assumption that the applicant would use excessive leave to care for the spouse. It also would protect an individual who does volunteer work for people with AIDS from a discriminatory employment action motivated by that relationship or association.
Q. How are the employment provisions enforced?
A. Like other federal laws prohibiting discrimination, the ADA is interpreted and enforced by the EEOC. An employee can file a charge of discrimination with the EEOC (and/or a state fair employment practices agency, if state law also prohibits disability discrimination). The EEOC might try to settle or mediate the case, investigate, or even litigate on the employee's behalf. If the EEOC decides not to proceed with the case, it will issue the employee a right to sue letter, giving the employee an opportunity to file a lawsuit. (Employees can also requrest a right to sue letter.) Employees are required to file a charge of discrimination with the EEOC before they may file a lawsuit.