ADA Employment Rules

Congress’ intention in passing the ADA was to provide a “clear and comprehensive national mandate” and “clear, strong, consistent, enforceable standards” to eliminate discrimination against people with disabilities.  Congress also intended that the federal government play a central role in enforcing these standards by using the “sweep of congressional authority” to address “the major areas of discrimination faced day-to-day by people with disabilities.

Under the Act, someone is considered to have a disability if he or she has “a physical or mental impairment that substantially limits one or more major life activity; has a record of such an impairment; or is regarded as having such an impairment.”  The Act provides protections in several different areas, including employment, public services, public accommodations, and telecommunications.  This article will discuss the most important provisions of the law in these areas.

A. Employment.  The ADA prohibits an employer from discriminating against a qualified individual with a disability because of that person’s disability in job application procedures; hiring, advancement, or discharge of the employee; compensation; job training; and other terms, conditions, and privileges of employment.  The Act defines a “qualified individual with a disability” as “an individual with a disability who, with or without reasonable accommodation, can perform the essential functions of the employing position that such individual holds or desires.”

Throughout consideration of the legislation, Congress struggled with what accommodations employers or others would be required to provide persons with disabilities.  In its final form, “reasonable accommodation” under the Act may include making existing facilities used by employees readily accessible to and usable by individuals with disabilities; job restructuring; part-time or modified work schedules; reassignment to a vacant position; acquisition or modification of equipment or devices; appropriate adjustment or modifications of examinations, training materials or policies; provision of qualified readers and interpreters; and other similar accommodations for individuals with disabilities.

Under the Act, employers need not make these accommodations if they would result in “undue hardship.”  In determining whether an accommodation would impose such a hardship, the factors to be considered include its nature and costs; the overall financial resources of the facility and number of people employed there; the overall financial resources of the covered entity; the cost’s effect on expenses and resources; and the type of operation of the facility.

Under the ADA, discrimination encompasses at least seven situations:

limiting, segregating, or classifying a job applicant or employee in a way that adversely affects his or her opportunities or status because of the disability;

participating in a contractual or other arrangement or relationship that subjects the person with a disability to discrimination;

utilizing standards, criteria or methods of administration that have the effect of or perpetuate discrimination based on disability;

excluding or otherwise denying equal jobs or benefits to a qualified individual because of the known disability of an individual with whom he or she has a relationship;

not making reasonable accommodations for an otherwise qualified individual with a disability unless the accommodation would impose an undue hardship on the business;

using qualification standards, employment tests or other selection criteria that screen out individuals with disabilities unless the criteria are shown to be job-related for the position and consistent with the business necessity;

failing to select and administer tests that accurately reflect the skills the test seeks to measure, rather than reflecting the impaired skills resulting from the person’s disability.  (Unless the skills are the factors that the tests purport to measure).

The Act also limits the utilization of medical examinations and inquiries.  In pre-employment situations, the employer may only ask about the ability of an applicant to perform “job-related functions” and may not inquire whether the applicant has a disability or what its nature or severity is.  Once it has made an offer, the employer may only require a medical examination if all entering employees are subjected to such an examination regardless of disability.

The Act specifically provides that a “qualified individual with a disability” does not include “any employee or applicant who is currently engaging in the illegal use of drugs.”  Employers in food services will also be able to deny employment to individuals who have infectious and communicable diseases which may be transmitted through handling the food supply, according to lists to be established by the Secretary of Health and Human Services.

The employment protections of the Act only apply to employers of 25 or more, beginning July 26, 1992.  Employers with 15-24 employees must comply with the law, effective July 26, 1994.  The Act does not cover employers of less than 15 employees.  The Equal  Employment Opportunity Commission will be responsible  for enforcing the Act’s protections.

This article was excerpted from the Minnesota Disability Law Report.