The Americans With Disabilities Act (ADA) makes it unlawful for an employer with 15 or more employees to discriminate against a qualified individual with a disability. The Michigan Persons with Disabilities Civil Rights Act, for example, which is similar to the ADA in many respects, covers employers with one or more employees.
You need to make yourself aware of the laws in your city, state, or country so that you are up-to-date on how to avoid discrimination in your interaction with employees and potential employees.
This article addresses a number of disability law issues relevant to employers.
Make sure that you consult with your employment law attorney for your location to ensure that you are up to speed on any legislation which may affect your actions as an employer. Undoubtedly states in addition to Michigan and other jurisdictions will have their own requirements in addition to the Federal law.
Protections Offered by the ADA for Employees and Potential Employees
Who is protected by the ADA?
The ADA applies to a person who has a physical or mental impairment that substantially limits one or more major life activities (like walking, standing, kneeling or breathing).
Examples include individuals who have physical conditions such as epilepsy, diabetes, severe forms of arthritis, hypertension, or carpal tunnel syndrome, as well as individuals with mental impairments such as major depression, bipolar (manic-depressive) disorder, and mental retardation. Alcoholics are covered as well as recovering drug addicts.
An individual with a disability must be able to perform the essential functions of the job, with or without accommodation, in order to be protected by the ADA. The individual must also be otherwise qualified for the position.
This means that an individual must be able to satisfy the job requirements for educational background, employment experience, skills, licenses, and any other job-related qualification standards.
What qualifies as an essential function?
Essential functions are the fundamental job duties of the position. Relevant factors include:
- whether the reason the position exists is to perform that function;
- the number of other employees available to perform the function; and
- the degree of expertise or skill that is required to perform the function.
What employment practices are covered?
The ADA makes it unlawful to discriminate in all employment practices, including recruitment, hiring, firing, pay, promotions, job assignments, training, leave, layoffs, benefits, etc. In addition, the ADA prohibits an employer from retaliating against an applicant or employee for asserting his or her rights under the ADA.
The ADA also makes it unlawful to discriminate against an applicant or employee, whether disabled or not, because of the individual's relationship or association with an individual with a disability.
What does the ADA require an employer to do?
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;
- have equal access to benefits and privileges of employment that are offered to other employees; and
- are not harassed because of their disability.
Further, an employer is also required to 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.
What is a reasonable accommodation? 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 who have the same disability) will require the same accommodation. Reasonable accommodations may, under some circumstances, include:
- purchasing equipment or modifying existing equipment;
- making changes to facilities or work areas;
- shifting responsibilities to other employees for minor tasks;
- adjusting arrival or departure times, providing periodic breaks, or altering when certain tasks are performed;
- allowing the employee to telework or work remotely for part or all of the job; and/or
- allowing an employee to use accrued paid leave, and providing additional unpaid leave once an employee has exhausted all available leave.
What is an undue hardship under the ADA?
Undue hardship is defined as an action requiring significant difficulty or expense when considered in light of such factors as the:
- nature and cost of the accommodation needed;
- impact of the accommodation on other employees and the organization’s ability to conduct business; and
- size, type and overall financial resources of the employer.
If providing a particular accommodation would result in undue hardship, an employer should consider whether another accommodation exists that would not.
Additional Employer Questions About the ADA
Can an employer consider health and safety issues in deciding whether to hire an applicant or to retain an employee with a disability?
Yes. The ADA permits an employer to require that an individual not pose a direct threat to the health and safety of the individual to other employees, or to the public. A direct threat means a significant risk of substantial harm.
When can an employer require a medical examination?
The ADA prohibits medical examinations before a job offer was made. After a job has been offered and prior to the start of employment, a medical examination may be required and the job offer may be conditioned on the exam results. An examination must be required of every applicant in the same job category.
If the employment offer is withdrawn due to medical findings, the employer must be able to show the rejection was job-related and a business necessity and that there was no reasonable accommodation that would enable the individual to perform the job’s essential functions. In light of the increase in employment lawsuits, effectively documenting this entire consideration is strongly recommended.
Under the ADA, employers generally may not require medical examinations of employees except under the following circumstances:
- to determine if the employee can do the essential functions of the job following a leave for illness or injury or if the employee’s fitness for duty is in question;
- after an employee requests an accommodation, to determine if the employee has a disability covered by the ADA and what reasonable accommodations may be required;
- if required for employer-provided health or life insurance or for voluntary participation in an employer-sponsored health program; and
- if required by some federal law or regulation.
In summary, while the ADA can cause employers to pause and worry about compliance, if you have done your level best to operate within the requirements of the law, you are treating employees and potential employees with fairness and justice for all. And, isn't this your core concept of you as an employer?
Disclaimer: Please note that the information provided, while authoritative, is not guaranteed for accuracy and legality. The site is read by a world-wide audience and employment laws and regulations vary from state to state and country to country and from year to year. Please seek legal assistance, or assistance from State, Federal, or International governmental resources, to make certain your legal interpretation and decisions are correct for your location. This information is for guidance, ideas, and assistance. Furthermore, it is not comprehensive coverage of the subject.
Melvin Muskovitz is a member of Dykema’ s Labor and Employment Practice Group and represents employers in federal and state courts, and before administrative agencies.