If you are a private employer, state or local government, employment agency, labor organization or labor management committee and have over 15 employees, you are obligated to comply with Title I of the Americans with Disabilities Act. Simply put, you may not discriminate against individuals with disabilities in all aspects of employment from recruitment to dismissal. You are also prohibited from retaliating against individuals with disabilities should they choose to assert their rights under the ADA.
Individuals protected under the ADA are those who have a disability, as defined under the ADA, and are qualified to do the job with or without a reasonable accommodation. To be clear, under the ADA, an individual is considered a person with a disability if they have a physical or mental impairment that substantially limits a major life activity, has a history of a disability, or is regarded as having a disability by the employer. Protection also occurs if individuals are discriminated against due to their association with a person with a disability.
Major life activities include, but are not limited to; hearing, seeing, speaking, walking, breathing, performing manual tasks, caring for yourself, bending, communicating, and reading. The ADA Amendments Act of 2008 also added major bodily functions such as; functions of the immune system, normal cell growth, digestive, bowel, bladder, neurological, brain, respiratory, circulatory, endocrine, and reproductive functions.
Employees with disabilities need to be qualified to do the essential functions of the job, meaning they must have the skills, education, credentials, and ability to do the job, with or without a reasonable accommodation. A reasonable accommodation is simply any change or adjustment to a job or work environment that allows the individual to apply for the job, interview for the job, perform the essential functions of the job, and enjoy the benefits and privileges of the job. Some examples of reasonable accommodation are; providing or modifying equipment, modified work schedules, physical accessibility to the workspace, interpreters, readers, and modifications to company policies.
Essential functions are the job duties required for the position. These essential functions should always be listed on the job description and be available when recruiting new job candidates. You may want to consider the following when determining if a function is essential or non essential;
- The job exists to perform the function
- There are a limited number of people to perform the function
- The job is highly specialized
- The work experience of present and past employee in the job
- The time spent performing the function
- The consequences of not requiring that an employee perform a function
- The terms of a collective bargaining agreement
To promote an inclusive workplace, we have created a employers’ guide to reasonable accommodations and using assistive technologies for employers with disabilities: Assistive Technologies Resource Guide (PDF)
If someone has an obvious disability, may I ask them about it during the interview?
No, you may not ask an individual about their disability, hidden or obvious, during the interview process. You may however ask applicants if they require a reasonable accommodation for the interview process. Also, you are not allowed to ask the following:
- Questions about an individual’s impairment
- Questions about an individual’s use of medication
- Questions about workers’ compensation history
- Questions about mental health treatment
What am I allowed to ask during the interview process?
You may ask the candidate to demonstrate how they will perform the essential functions of the job with our without a reasonable accommodation. You may also address any of the following questions:
- Questions about whether the person can perform the essential functions of the job
- Questions about current illegal use of drugs
- Questions concerning a history of workplace violence
Does a request for a reasonable accommodation from the employee need to be in writing?
The ADA does not require requests for reasonable accommodations to be in writing; however many companies do ask that employees fill out request forms for any ADA related accommodations. It is advisable to have some written documentation of the request and agreed upon accommodation(s). It is important to note that any written documentation and physician reports be kept confidential and in a separate locked file independent from the employee’s personal files.
Can an employee ask that an essential function be removed as a reasonable accommodation?
No, an employee may not ask for the removal of an essential function as an accommodation. Non essential functions however may be removed or exchanged as an accommodation. The following are not required as reasonable accommodations:
- Removing an essential function or hiring someone else to perform the function
- Lowering production standards
- Reassign to a different supervisor
- Promotion to a higher position
- Provision of “light duty” items
- Excusing misconduct
- Providing “personal use items”, such as eyeglasses, wheelchairs, prosthetic limbs
If I have several qualified job candidates, do I have to give preference to the applicant with a disability?
No, you may choose to hire the most qualified candidate. The ADA states only that you may not discriminate against a qualified applicant on the basis on their disability.
Our company holiday party is always held at a restaurant that is not accessible to those using wheelchairs and we have recently hired someone who uses a scooter; can we still use this restaurant?
No, the ADA states that employees with disabilities are entitled to the same benefits and privileges of the job as their co-workers without disabilities. You may choose to ask the employee for suggestions of accessible restaurants in the area.
What if my company cannot afford the accommodation requested by the employee?
If after reviewing the costs involved, as well as the size and financial resources of the company it is determined that the accommodation is an undue hardship you must try to identify a less costly, but still effective accommodation for the employee. You are also obligated to research outside funding sources such as vocational rehabilitation agencies and/or state and federal tax credit and deductions. If none are available, you must give the employee the option to provide the accommodation or pay for a portion of the costs.
Who can I contact for assistance in identifying a less costly, but still effective reasonable accommodation?
The best resource to being with is the Job Accommodation Network; you can contact them at www.askjan.org