Complying with the Americans with Disabilities Act (ADA): Common FAQs
Jeannine LeCompte, Compliance Research Specialist
Even once employers understand all the critical definitions involved in complying with the provisions of the Americans with Disabilities Act (ADA) of 1990, they may still face a number of scenarios in which further guidance is required.
This guidance has usually come from court cases or EEOC rulings, and covers a number of important issues:
— According to the US Supreme Court, an employer may refuse to hire an individual whose disability would pose a direct threat of harm to himself on the job.
— The ADA does not protect only United States citizens, as might be implied by the title Americans with Disabilities Act. It protects all qualified persons who have disabilities, regardless of their citizenship or nationality.
— Under the ADA, an employer can select the most qualified applicant available for a job, as long as the decision is not based on the existence or consequence of a disability.
— Employment decisions may not subject a qualified person with a disability to discrimination on the basis of that disability. The applicant does not need to reveal on an application or during the interview process that he or she requires reasonable accommodation.
— The Americans with Disabilities Act includes an “association” provision protecting employees and applicants from discrimination based on a societal presumption based in perceptions of disabilities. For example, it is illegal to refuse to hire someone whose child has a disability based on an assumption that the applicant will take excessive amounts of leave to care for that child, or that there would be an increased health insurance cost associated with caring for that child.
— Job restructuring is regarded as a “reasonable accommodation” and can include the removal or altering of a nonessential function of the job.
— The application of “light duty” is not required by the ADA/ADAAA, and is applied solely at the employer’s discretion.
— Morbid obesity may be a protected disability when it has a significant impact on a major life activity. Rules on employment and obesity vary from state to state, and employers need to check their own state requirements.
— Pregnancy is not considered a “disability.” Pregnancy-related ADA claims may occur when there are pregnancy complications, or if an employer views pregnancy as a disability and discriminates against a woman on this basis. If a pregnant employee temporarily cannot perform her job because of her pregnancy, the employer must treat her the same as any other temporarily disabled employee.
— The ADA prohibits pre-employment medical exams until an offer of employment is made. A medical exam can only be required once an employment offer has been made, and even then only if all new hires are required to take that test. If an offer of employment is withdrawn based the outcome of that test, the employer must show that the specific impairment makes the person unqualified to perform essential job functions, or the applicant poses a direct safety threat because of the impairment. In this regard, threat factors include the duration of the risk; the nature or severity of potential harm; the likelihood of harm; and the imminence of potential harm.
— Any employee requesting an accommodation on the basis of a disability can be asked to provide a physician’s certification of the condition. The employer is entitled to ask for a second opinion at their own expense. If these two medical opinions differ, a third and binding opinion can be required.
— In dealing with absenteeism, an employer cannot discipline or terminate an employee solely for poor attendance unless able to prove that regular attendance is essential to performing the job; and that reasonable accommodation was attempted.
Finally, it should of course always be borne in mind that all medical records are subject to the privacy rules of the Health Insurance Portability and Accountability Act (HIPAA) of 1996. The ADA only allows an employer to disclose a person’s disability where necessary 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 in the event of an emergency; to individuals investigating compliance with the ADA and similar state and local laws; and where required for workers’ compensation or insurance purposes: for example, to process a claim.
References:
“The ADA: Your Responsibilities as an Employer”
https://www.eeoc.gov/eeoc/publications/ada17.cfm
“Disability Discrimination”
https://www.eeoc.gov/laws/types/disability.cfm
“Facts About the Americans with Disabilities Act”
