- its nature and severity;
- how long it will last or is expected to
last;
- its permanent or long term impact, or expected
impact.
These factors must be considered because,
generally, it is not the name of an impairment or a condition
that determines whether a person is protected by the ADA, but
rather the effect of an impairment or condition on the life of
a particular person. Some impairments, such as blindness, deafness,
HIV infection or AIDS, are by their nature substantially limiting,
but many other impairments may be disabling for some individuals
but not for others, depending on the impact on their activities.
For example: Although cerebral palsy frequently
significantly restricts major life activities such as speaking,
walking and performing manual tasks, an individual with very mild
cerebral palsy that only slightly interferes with his ability
to speak and has no significant impact on other major life activities
is not an individual with a disability under this part of the
definition.
The determination as to whether an individual
is substantially limited must always be based on the effect of
an impairment on that individual's life activities.
For example: An individual who had been employed
as a receptionist-clerk sustained a back injury that resulted
in considerable pain. The pain permanently restricted her ability
to walk, sit, stand, drive, care for her home, and engage in recreational
activities. Another individual who had been employed as a general
laborer had sustained a back injury, but was able to continue
an active life, including recreational sports, and had obtained
a new position as a security guard. The first individual was found
by a court to be an individual with a disability; the second individual
was found not significantly restricted in any major life activity,
and therefore not an individual with a disability.
Sometimes, an individual may have two or more
impairments, neither of which by itself substantially limits a
major life activity, but that together have this effect. In such
a situation, the individual has a disability.
For example: A person has a mild form of arthritis
in her wrists and hands and a mild form of osteoporosis. Neither
impairment by itself substantially limits a major life activity.
Together, however, these impairments significantly restrict her
ability to lift and perform manual tasks. She has a disability
under the ADA.
Temporary Impairments
Employers frequently ask whether "temporary
disabilities" are covered by the ADA. How long an impairment lasts
is a factor to be considered, but does not by itself determine
whether a person has a disability under the ADA. The basic question
is whether an impairment "substantially limits" one or more major
life activities. This question is answered by looking at the extent,
duration, and impact of the impairment. Temporary, non-chronic
impairments that do not last for a long time and that have little
or no long term impact usually are not disabilities.
For example: Broken limbs, sprains, concussions,
appendicitis, common colds, or influenza generally would not be
disabilities. A broken leg that heals normally within a few months,
for example, would not be a disability under the ADA. However,
if a broken leg took significantly longer than the normal healing
period to heal, and during this period the individual could not
walk, s/he would be considered to have a disability. Or, if the
leg did not heal properly, and resulted in a permanent impairment
that significantly restricted walking or other major life activities,
s/he would be considered to have a disability.
Substantially Limited in Working
It is not necessary to consider if a person
is substantially limited in the major life activity of "working"
if the person is substantially limited in any other major life
activity.
For example: If a person is substantially
limited in seeing, hearing, or walking, there is no need to consider
whether the person is also substantially limited in working.
In general, a person will not be considered
to be substantially limited in working if s/he is substantially
limited in performing only a particular job for one employer,
or unable to perform a very specialized job in a particular field.
For example: A person who cannot qualify as
a commercial airline pilot because of a minor vision impairment,
but who could qualify as a co-pilot or a pilot for a courier service,
would not be considered substantially limited in working just
because he could not perform a particular job. Similarly, a baseball
pitcher who develops a bad elbow and can no longer pitch would
not be substantially limited in working because he could no longer
perform the specialized job of pitching in baseball.
But a person need not be totally unable to
work in order to be considered substantially limited in working.
The person must be significantly restricted in the ability to
perform either a class of jobs or a broad range of jobs in various
classes, compared to an average person with similar training,
skills, and abilities.
The regulations provide factors to help determine
whether a person is substantially limited in working. These include:
- the type of job from which the individual
has been disqualified because of the impairment;
- the geographical area in which the person
may reasonably expect to find a job;
- the number and types of jobs using similar
training, knowledge, skill, or abilities from which the individual
is disqualified within the geographical area; and/or
- the number and types of other jobs in the
area that do not involve similar training, knowledge, skill,
or abilities from which the individual also is disqualified
because of the impairment.
For example: A person would be considered
significantly restricted in a "class of jobs" if a back condition
prevents him from working in any heavy labor job. A person would
be considered significantly limited in the ability to perform
"a broad range of jobs in various classes" if she has an allergy
to a substance found in most high-rise office buildings in the
geographic area in which she could reasonably seek work, and the
allergy caused extreme difficulty in breathing. In this case,
she would be substantially limited in the ability to perform the
many different kinds of jobs that are performed in high-rise buildings.
By contrast, a person who has a severe allergy to a substance
in the particular office in which she works, but who is able to
work in many other offices that do not contain this substance,
would not be significantly restricted in working.
For example: A computer programmer develops
a vision impairment that does not substantially limit her ability
to see, but because of poor contrast is unable to distinguish
print on computer screens. Her impairment prevents her from working
as a computer operator, programmer, instructor, or systems analyst.
She is substantially limited in working, because her impairment
prevents her from working in the class of jobs requiring use of
a computer.
In assessing the "number" of jobs from which
a person might be excluded by an impairment, the regulations make
clear that it is only necessary to indicate an approximate number
of jobs from which an individual would be excluded (such as "few,"
"many," "most"), compared to an average person with similar training,
skills and abilities, to show that the individual would be significantly
limited in working.
Specific Exclusions
A person who currently illegally uses drugs
is not protected by the ADA , as an "individual with a
disability", when an employer acts on the basis of such use. However,
former drug addicts who have been successfully rehabilitated may
be protected by the Act. (See Chapter VIII). (See also discussion
below of a person "regarded as" a drug addict.)
Homosexuality and bisexuality are not impairments
and therefore are not disabilities covered by the ADA. The Act
also states that the term "disability" does not include the following
sexual and behavioral disorders:
- transvestism, transsexualism, pedophilia,
exhibitionism, voyeurism, gender identity disorders not resulting
from physical impairments, or other sexual behavior disorders;
- compulsive gambling, kleptomania, or pyromania;
or
- psychoactive substance use disorders resulting
from current illegal use of drugs.
The discussion so far has focused on the first
part of the definition of an "individual with a disability," which
protects people who currently have an impairment that substantially
limits a major life activity. The second and third parts of the
definition protect people who may or may not actually have such
an impairment, but who may be subject to discrimination because
they have a record of or are regarded as having such an impairment.
2.2(b) Record of a Substantially Limiting
Condition
This part of the definition protects people
who have a history of a disability from discrimination, whether
or not they currently are substantially limited in a major life
activity.
For example: It protects people with a history
of cancer, heart disease, or other debilitating illness, whose
illnesses are either cured, controlled or in remission. It also
protects people with a history of mental illness.
This part of the definition also protects
people who may have been misclassified or misdiagnosed as having
a disability.
For example: It protects a person who may
at one time have been erroneously classified as having mental
retardation or having a learning disability. These people have
a record of disability. (If an employer relies on any record [such
as an educational, medical or employment record] containing such
information to make an adverse employment decision about a person
who currently is qualified to perform a job, the action is subject
to challenge as a discriminatory practice.)
Other examples of individuals who have a record
of disability, and of potential violations of the ADA if an employer
relies on such a record to make an adverse employment decision:
- A job applicant formerly was a patient
at a state institution. When very young she was misdiagnosed
as being psychopathic and this misdiagnosis was never removed
from her records. If this person is otherwise qualified for
a job, and an employer does not hire her based on this record,
the employer has violated the ADA.
- A person who has a learning disability
applies for a job as secretary/receptionist. The employer reviews
records from a previous employer indicating that he was labeled
as "mentally retarded." Even though the person's resume shows
that he meets all requirements for the job, the employer does
not interview him because he doesn't want to hire a person who
has mental retardation. This employer has violated the ADA.
- A job applicant was hospitalized for treatment
for cocaine addiction several years ago. He has been successfully
rehabilitated and has not engaged in the illegal use of drugs
since receiving treatment. This applicant has a record of an
impairment that substantially limited his major life activities.
If he is qualified to perform a job, it would be discriminatory
to reject him based on the record of his former addiction.
In the last example above, the individual
was protected by the ADA because his drug addiction was an impairment
that substantially limited his major life activities. However,
if an individual had a record of casual drug use, s/he would not
be protected by the ADA, because casual drug use, as opposed to
addiction, does not substantially limit a major life activity.
To be protected by the ADA under this part
of the definition, a person must have a record of a physical or
mental impairment that substantially limits one or more major
life activities. A person would not be protected, for example,
merely because s/he has a record of being a "disabled veteran,"
or a record of "disability" under another Federal statute or program
unless this person also met the ADA definition of an individual
with a record of a disability.
2.2(c) Regarded as Substantially Limited
This part of the definition protects people
who are not substantially limited in a major life activity from
discriminatory actions taken because they are perceived to have
such a limitation. Such protection is necessary, because, as the
Supreme Court has stated and the Congress has reiterated, "society's
myths and fears about disability and disease are as handicapping
as are the physical limitations that flow from actual impairments."
The legislative history of the ADA indicates
that Congress intended this part of the definition to protect
people from a range of discriminatory actions based on "myths,
fears and stereotypes" about disability, which occur even when
a person does not have a substantially limiting impairment.
An individual may be protected under this
part of the definition in three circumstances:
1. The individual may have an impairment which
is not substantially limiting, but is treated by the employer
as having such an impairment.
For example: An employee has controlled high
blood pressure which does not substantially limit his work activities.
If an employer reassigns the individual to a less strenuous job
because of unsubstantiated fear that the person would suffer a
heart attack if he continues in the present job, the employer
has "regarded" this person as disabled.
2. The individual has an impairment that is
substantially limiting because of attitudes of others toward the
condition.
For example: An experienced assistant manager
of a convenience store who had a prominent facial scar was passed
over for promotion to store manager. The owner promoted a less
experienced part-time clerk, because he believed that customers
and vendors would not want to look at this person. The employer
discriminated against her on the basis of disability, because
he perceived and treated her as a person with a substantial limitation.
3. The individual may have no impairment at
all, but is regarded by an employer as having a substantially
limiting impairment.
For example: An employer discharged an employee
based on a rumor that the individual had HIV disease. This person
did not have any impairment, but was treated as though she had
a substantially limiting impairment.
This part of the definition protects people
who are "perceived" as having disabilities from employment decisions
based on stereotypes, fears, or misconceptions about disability.
It applies to decisions based on unsubstantiated concerns about
productivity, safety, insurance, liability, attendance, costs
of accommodation, accessibility, workers' compensation costs or
acceptance by co-workers and customers.
Accordingly, if an employer makes an adverse
employment decision based on unsubstantiated beliefs or fears
that a person's perceived disability will cause problems in areas
such as those listed above, and cannot show a legitimate, nondiscriminatory
reason for the action, that action would be discriminatory under
this part of the definition.
2.3 Qualified Individual with a Disability
To be protected by the ADA, a person must
not only be an individual with a disability, but must be qualified.
An employer is not required to hire or retain an individual who
is not qualified to perform a job. The regulations define a qualified
individual with a disability as a person with a disability who:
"satisfies the requisite skill, experience,
education and other job-related requirements of the employment
position such individual holds or desires, and who, with or without
reasonable accommodation, can perform the essential functions
of such position."
There are two basic steps in determining whether
an individual is "qualified" under the ADA:
(1) Determine if the individual meets necessary
prerequisites for the job, such as:
- education;
- work experience;
- training;
- skills;
- licenses;
- certificates;
- other job-related requirements,
such as good judgment or ability to work with other people.
For example: The first step in determining
whether an accountant who has cerebral palsy is qualified for
a certified public accountant job is to determine if the person
is a licensed CPA. If not, s/he is not qualified. Or, if it is
a company's policy that all its managers have at least three years'
experience working with the company, an individual with a disability
who has worked for two years for the company would not be qualified
for a managerial position.
This first step is sometimes referred to as
determining if an individual with a disability is "otherwise qualified."
Note, however, that if an individual meets all job prerequisites
except those that s/he cannot meet because of a disability, and
alleges discrimination because s/he is "otherwise qualified" for
a job, the employer would have to show that the requirement that
screened out this person is "job related and consistent with business
necessity." (See Chapter IV)
If the individual with a disability meets
the necessary job prerequisites:
(2) Determine if the individual can perform
the essential functions of the job, with or without reasonable
accommodation.
This second step, a key aspect of nondiscrimination
under the ADA, has two parts:
- Identifying "essential functions of the
job"; and
- Considering whether the person with a disability
can perform these functions, unaided or with a "reasonable accommodation."
The ADA requires an employer to focus on the
essential functions of a job to determine whether a person with
a disability is qualified. This is an important nondiscrimination
requirement. Many people with disabilities who can perform essential
job functions are denied employment because they cannot do things
that are only marginal to the job.
For example: A file clerk position description
may state that the person holding the job answers the telephone,
but if in fact the basic functions of the job are to file and
retrieve written materials, and telephones actually or usually
are handled by other employees, a person whose hearing impairment
prevents use of a telephone and who is qualified to do the basic
file clerk functions should not be considered unqualified for
this position.
2.3(a) Identifying the Essential Functions
of a Job
Sometimes it is necessary to identify the
essential functions of a job in order to know whether an individual
with a disability is "qualified" to do the job. The regulations
provide guidance on identifying the essential functions of the
job. The first consideration is whether employees in the position
actually are required to perform the function.
For example: A job announcement or job description
for a secretary or receptionist may state that typing is a function
of the job. If, in fact, the employer has never or seldom required
an employee in that position to type, this could not be considered
an essential function.
If a person holding a job does perform a function,
the next consideration is whether removing that function would
fundamentally change the job.
The regulations list several reasons why a
function could be considered essential:
1. The position exists to perform the function.
For example:
- A person is hired to proofread
documents. The ability to proofread accurately is an essential
function, because this is the reason that this position exists.
- A company advertises a position
for a "floating" supervisor to substitute when regular supervisors
on the day, night, and graveyard shifts are absent. The only
reason this position exists is to have someone who can work
on any of the three shifts in place of an absent supervisor.
Therefore, the ability to work at any time of day is an essential
function of the job.
2. There are a limited number of
other employees available to perform the function, or among whom
the function can be distributed.
This may be a factor because there are only
a few other employees, or because of fluctuating demands of a
business operation.
For example: It may be an essential
function for a file clerk to answer the telephone if there are
only three employees in a very busy office and each employee has
to perform many different tasks. Or, a company with a large workforce
may have periods of very heavy labor-intensive activity alternating
with less active periods. The heavy work flow during peak periods
may make performance of each function essential, and limit an
employer's flexibility to reassign a particular function.
3. A function is highly specialized,
and the person in the position is hired for special expertise
or ability to perform it.
For example, A company wishes to
expand its business with Japan. For a new sales position, in addition
to sales experience, it requires a person who can communicate
fluently in the Japanese language. Fluent communication in the
Japanese language is an essential function of the job.
The regulation also lists several
types of evidence to be considered in
determining whether a function is essential. This list is not
all-inclusive, and factors not on the list may be equally important
as evidence. Evidence to be considered includes:
a. The employer's judgment
An employer's judgment as to which functions
are essential is important evidence. However, the legislative
history of the ADA indicates that Congress did not intend that
this should be the only evidence, or that it should be the prevailing
evidence. Rather, the employer's judgment is a factor to be
considered along with other relevant evidence.
However, the consideration of various kinds
of evidence to determine which functions are essential does
not mean that an employer will be second-guessed on production
standards, setting the quality or quantity of work that must
be performed by a person holding a job, or be required to set
lower standards for the job.
For example: If an employer requires its
typists to be able to accurately type 75 words per minute, the
employer is not required to show that such speed and accuracy
are "essential" to a job or that less accuracy or speed would
not be adequate. Similarly, if a hotel requires its housekeepers
to thoroughly clean 16 rooms per day, it does not have to justify
this standard as "essential." However, in each case, if a person
with a disability is disqualified by such a standard, the employer
should be prepared to show that it does in fact require employees
to perform at this level, that these are not merely paper requirements
and that the standard was not established for a discriminatory
reason.
b. A written job description prepared
before advertising or interviewing applicants for a job
The ADA does not require an employer to
develop or maintain job descriptions. A written job description
that is prepared before advertising or interviewing applicants
for a job will be considered as evidence along with other relevant
factors. However, the job description will not be given greater
weight than other relevant evidence.
A written job description may state that
an employee performs a certain essential function. The job description
will be evidence that the function is essential, but if individuals
currently performing the job do not in fact perform this function,
or perform it very infrequently, a review of the actual work
performed will be more relevant evidence than the job description.
If an employer uses written job descriptions,
the ADA does not require that they be limited to a description
of essential functions or that "essential functions" be identified.
However, if an employer wishes to use a job description as evidence
of essential functions, it should in some way identify those
functions that the employer believes to be important in accomplishing
the purpose of the job.
If an employer uses written job descriptions,
they should be reviewed to be sure that they accurately reflect
the actual functions of the current job. Job descriptions written
years ago frequently are inaccurate.
For example: A written job description
may state that an employee reads temperature and pressure gauges
and adjusts machine controls to reflect these readings. The
job description will be evidence that these functions are essential.
However, if this job description is not up-to-date, and in fact
temperature and pressure are now determined automatically, the
machine is controlled by a computer and the current employee
does not perform the stated functions or does so very infrequently,
a review of actual work performed will be more relevant evidence
of what the job requires.
In identifying an essential function to
determine if an individual with a disability is qualified, the
employer should focus on the purpose of the function and the
result to be accomplished, rather than the manner in which the
function presently is performed. An individual with a disability
may be qualified to perform the function if an accommodation
would enable this person to perform the job in a different way,
and the accommodation does not impose an undue hardship. Although
it may be essential that a function be performed, frequently
it is not essential that it be performed in a particular way.
For example: In a job requiring use of a
computer, the essential function is the ability to access, input,
and retrieve information from the computer. It is not
"essential" that a person in this job enter information manually,
or visually read the information on the computer screen. Adaptive
devices or computer software can enable a person without arms
or a person with impaired vision to perform the essential functions
of the job.
Similarly, an essential function of a job
on a loading dock may be to move heavy packages from the dock
to a storage room, rather than to lift and carry packages from
the dock to the storage room.
(See also discussion of Job Analysis and
Essential Functions of a Job, below).
If the employer intends to use a job description
as evidence of essential functions, the job description must
be prepared before advertising or interviewing for a job; a
job description prepared after an alleged discriminatory action
will not be considered as evidence.
c. The amount of time spent performing
the function
For example: If an employee spends most
of the time or a majority of the time operating one machine,
this would be evidence that operating this machine was an essential
function.
d. The consequences of not requiring
a person in this job to perform a function
Sometimes a function that is performed infrequently
may be essential because there will be serious consequences
if it is not performed.
For example:
- An airline pilot spends only a few minutes
of a flight landing a plane, but landing the plane is an essential
function because of the
very serious consequences if the pilot could not perform this
function.
- A firefighter may only occasionally
have to carry a heavy person from a burning building, but
being able to perform this function would be essential to
the firefighter's job.
- A clerical worker may spend
only a few minutes a day answering the telephones, but this
could be an essential function if no one else is available
to answer the phones at that time, and business calls would
go unanswered.
e. The terms of a collective bargaining
agreement
Where a collective bargaining agreement
lists duties to be performed in particular jobs, the terms of
the agreement may provide evidence of essential functions. However,
like a position description, the agreement would be considered
along with other evidence, such as the actual duties performed
by people in these jobs.
f. Work experience of people who
have performed a job in the past and work experience of people
who currently perform similar jobs
The work experience of previous employees
in a job and the experience of current employees in similar
jobs provide pragmatic evidence of actual duties performed.
The employer should consult such employees and observe their
work operations to identify essential job functions, since the
tasks actually performed provide significant evidence of these
functions.
g. Other relevant factors
The nature of the work operation and the
employer's organizational structure may be factors in determining
whether a function is essential.
For example:
- A particular manufacturing facility receives
large orders for its product intermittently. These orders
must be filled under very tight deadlines. To meet these deadlines,
it is necessary that each production worker be able to perform
a variety of different tasks with different requirements.
All of these tasks are essential functions for a production
worker at that facility. However, another facility that receives
orders on a continuous basis finds it most efficient to organize
an assembly line process, in which each production worker
repeatedly performs one major task. At this facility, this
single task may be the only essential function of the production
worker's job.
- An employer may structure production
operations to be carried out by a "team" of workers. Each
worker performs a different function, but every worker is
required, on a rotating basis, to perform each different function.
In this situation, all the functions may be considered to
be essential for the job, rather than the function that any
one worker performs at a particular time.
Changing Essential Job Functions
The ADA does not limit an employer's ability
to establish or change the content, nature, or functions of a
job. It is the employer's province to establish what a job is
and what functions are required to perform it. The ADA simply
requires that an individual with a disability's qualifications
for a job are evaluated in relation to its essential functions.
For example: A grocery store may have two
different jobs at the checkout stand, one titled, "checkout clerk"
and the other "bagger." The essential functions of the checkout
clerk are entering the price for each item into a cash register,
receiving money, making change, and passing items to the bagger.
The essential functions of the bagging job are putting items into
bags, giving the bags to the customer directly or placing them
in grocery carts.
For legitimate business reasons, the store
management decides to combine the two jobs in a new job called
"checker-bagger." In the new job, each employee will have to perform
the essential functions of both former jobs. Each employee now
must enter prices in a new, faster computer-scanner, put the items
in bags, give the bags to the customer or place them in carts.
The employee holding this job would have to perform all of these
functions. There may be some aspects of each function, however,
that are not "essential" to the job, or some possible modification
in the way these functions are performed, that would enable a
person employed as a "checker" whose disability prevented performance
of all the bagging operations to do the new job.
For example: If the checker's disability made
it impossible to lift any item over one pound, s/he might not
be qualified to perform the essential bagging functions of the
new job. But if the disability only precluded lifting items of
more than 20 pounds, it might be possible for this person to perform
the bagging functions, except for the relatively few instances
when items or loaded bags weigh more than 20 pounds. If other
employees are available who could help this individual with the
few heavy items, perhaps in exchange for some incidental functions
that they perform, or if this employee could keep filled bags
loads under 20 pounds, then bagging loads over 20 pounds would
not be an essential function of the new job.
2.3(b) Job Analysis and the "Essential Functions"
of a Job
The ADA does not require that an employer
conduct a job analysis or any particular form of job analysis
to identify the essential functions of a job. The information
provided by a job analysis may or may not be helpful in properly
identifying essential job functions, depending on how it is conducted.
The term "job analysis" generally is used
to describe a formal process in which information about a specific
job or occupation is collected and analyzed. Formal job analysis
may be conducted by a number of different methods. These methods
obtain different kinds of information that is used for different
purposes. Some of these methods will not provide information sufficient
to determine if an individual with a disability is qualified to
perform "essential" job functions.
For example: One kind of formal job analysis
looks at specific job tasks and classifies jobs according to how
these tasks deal with data, people, and objects. This type of
job analysis is used to set wage rates for various jobs; however,
it may not be adequate to identify the essential functions of
a particular job, as required by the ADA. Another kind of job
analysis looks at the kinds of knowledge, skills, and abilities
that are necessary to perform a job. This type of job analysis
is used to develop selection criteria for various jobs. The information
from this type of analysis sometimes helps to measure the importance
of certain skills, knowledge and abilities, but it does not take
into account the fact that people with disabilities often can
perform essential functions using other skills and abilities.
Some job analysis methods ask current employees
and their supervisors to rate the importance of general characteristics
necessary to perform a job, such as "strength," "endurance," or
"intelligence," without linking these characteristics to specific
job functions or specific tasks that are part of a function. Such
general information may not identify, for example, whether upper
body or lower body "strength" is required, or whether muscular
endurance or cardiovascular "endurance" is needed to perform a
particular job function. Such information, by itself, would not
be sufficient to determine whether an individual who has particular
limitations can perform an essential function with or without
an accommodation.
As already stated, the ADA does not require
a formal job analysis or any particular method of analysis to
identify the essential functions of a job. A small employer may
wish to conduct an informal analysis by observing and consulting
with people who perform the job or have previously performed it
and their supervisors. If possible, it is advisable to observe
and consult with several workers under a range of conditions,
to get a better idea of all job functions and the different ways
they may be performed. Production records and workloads also may
be relevant factors to consider.
To identify essential job functions under
the ADA, a job analysis should focus on the purpose of the job
and the importance of actual job functions in achieving this purpose.
Evaluating "importance" may include consideration of the frequency
with which a function is performed, the amount of time spent on
the function, and the consequences if the function is not performed.
The analysis may include information on the work environment (such
as unusual heat, cold, humidity, dust, toxic substances or stress
factors). The job analysis may contain information on the manner
in which a job currently is performed, but should not conclude
that ability to perform the job in that manner is an essential
function, unless there is no other way to perform the function
without causing undue hardship. A job analysis will be most helpful
for purposes of the ADA if it focuses on the results or outcome
of a function, not solely on the way it customarily is performed.
For example:
- An essential function of a computer programmer
job might be described as "ability to develop programs that
accomplish necessary objectives," rather than "ability to manually
write programs." Although a person currently performing the
job may write these programs by hand, that is not the essential
function, because programs can be developed directly on the
computer.
- If a job requires mastery of information
contained in technical manuals, this essential function would
be "ability to learn technical material," rather than "ability
to read technical manuals." People with visual and other reading
impairments could perform this function using other means, such
as audiotapes.
- A job that requires objects to be moved
from one place to another should state this essential function.
The analysis may note that the person in the job "lifts 50 pound
cartons to a height of 3 or 4 feet and loads them into truck-trailers
5 hours daily," but should not identify the "ability to manually
lift and load 50 pound cartons" as an essential function unless
this is the only method by which the function can be performed
without causing an undue hardship.
A job analysis that is focused on outcomes
or results also will be helpful in establishing appropriate qualification
standards, developing job descriptions, conducting interviews,
and selecting people in accordance with ADA requirements. It will
be particularly useful in helping to identify accommodations that
will enable an individual with specific functional abilities and
limitations to perform the job. (See Chapter III.)
2.3(c) Perform Essential Functions "With
or Without Reasonable Accommodation"
Many individuals with disabilities are qualified
to perform the essential functions of jobs without need of any
accommodation. However, if an individual with a disability who
is otherwise qualified cannot perform one or more essential job
functions because of his or her disability, the employer, in assessing
whether the person is qualified to do the job, must consider whether
there are modifications or adjustments that would enable the person
to perform these functions. Such modifications or adjustments
are called "reasonable accommodations."
Reasonable accommodation is a key nondiscrimination
requirement under the ADA. An employer must first consider reasonable
accommodation in determining whether an individual with a disability
is qualified; reasonable accommodation also must be considered
when making many other employment decisions regarding people with
disabilities. The following chapter discusses the employer's obligation
to provide reasonable accommodation and the limits to that obligation.
The chapter also provides examples of reasonable accommodations.
III.THE REASONABLE ACCOMMODATION
OBLIGATION
3.1 Overview of Legal Obligations
- An employer must provide a reasonable accommodation
to the known physical or mental limitations of a qualified applicant
or employee with a disability unless it can show that the accommodation
would impose an undue hardship on the business.
- Reasonable accommodation is any modification
or adjustment to a job, an employment practice, or the work
environment that makes it possible for an individual with a
disability to enjoy an equal employment opportunity.
- The obligation to provide a reasonable
accommodation applies to all aspects of employment. This duty
is ongoing and may arise any time that a person's disability
or job changes.
- An employer cannot deny an employment opportunity
to a qualified applicant or employee because of the need to
provide reasonable accommodation, unless it would cause an undue
hardship.
- An employer does not have to make an accommodation
for an individual who is not otherwise qualified for a position.
- Generally, it is the obligation of an individual
with a disability to request a reasonable accommodation.
- A qualified individual with a disability
has the right to refuse an accommodation. However, if the individual
cannot perform the essential functions of the job without the
accommodation, s/he may not be qualified for the job.
- If the cost of an accommodation would impose
an undue hardship on the employer, the individual with a disability
should be given the option of providing the accommodation or
paying that portion of the cost which would constitute an undue
hardship.
3.2 Why Is a Reasonable Accommodation Necessary?
Reasonable accommodation is a key nondiscrimination
requirement of the ADA because of the special nature of discrimination
faced by people with disabilities. Many people with disabilities
can perform jobs without any need for accommodations. But many
others are excluded from jobs that they are qualified to perform
because of unnecessary barriers in the workplace and the work
environment. The ADA recognizes that such barriers may discriminate
against qualified people with disabilities just as much as overt
exclusionary practices. For this reason, the ADA requires reasonable
accommodation as a means of overcoming unnecessary barriers that
prevent or restrict employment opportunities for otherwise qualified
individuals with disabilities.
People with disabilities are restricted in
employment opportunities by many different kinds of barriers.
Some face physical barriers that make it difficult to get into
and around a work site or to use necessary work equipment. Some
are excluded or limited by the way people communicate with each
other. Others are excluded because of rigid work schedules that
allow no flexibility for people with special needs caused by disability.
Many are excluded only by barriers in other people's minds; these
include unfounded fears, stereotypes, presumptions, and misconceptions
about job performance, safety, absenteeism, costs, or acceptance
by co-workers and customers.
Under the ADA, when an individual with a disability
is qualified to perform the essential functions of a job except
for functions that cannot be performed because of related limitations
and existing job barriers, an employer must try to find a reasonable
accommodation that would enable this person to perform these functions.
The reasonable accommodation should reduce or eliminate unnecessary
barriers between the individual's abilities and the requirements
for performing the essential job functions.
3.3 What Is a Reasonable Accommodation?
Reasonable accommodation is a modification
or adjustment to a job, the work environment, or the way things
usually are done that enables a qualified individual with a disability
to enjoy an equal employment opportunity. An equal employment
opportunity means an opportunity to attain the same level of performance
or to enjoy equal benefits and privileges of employment as are
available to an average similarly-situated employee without a
disability. The ADA requires reasonable accommodation in three
aspects of employment:
- to ensure equal opportunity in
the application process;
- to enable a qualified individual
with a disability to perform the essential functions of a job;
and
- to enable an employee with a disability
to enjoy equal benefits and privileges of employment.
Reasonable Accommodation in the Application
Process
Reasonable accommodation must be provided
in the job application process to enable a qualified applicant
to have an equal opportunity to be considered for a job.
For example: A person who uses a wheelchair
may need an accommodation if an employment office or interview
site is not accessible. A person with a visual disability or a
person who lacks manual dexterity may need assistance in filling
out an application form. Without such accommodations, these individuals
may have no opportunity to be considered for a job.
(See Chapter V. for further discussion of
accommodations in the application process).
Accommodations to Perform the Essential
Functions of a Job
Reasonable accommodation must be provided
to enable a qualified applicant to perform the essential functions
of the job s/he is seeking, and to enable a qualified employee
with a disability to perform the essential functions of a job
currently held. Modifications or adjustments may be required in
the work environment, in the manner or circumstances in which
the job customarily is performed, or in employment policies. Many
accommodations of this nature are discussed later in this chapter.
Accommodations to Ensure Equal Benefits
of Employment
Reasonable accommodations must be provided
to enable an employee with a disability to enjoy benefits and
privileges of employment equal to those enjoyed by similarly situated
non-disabled employees.
For example: Employees with disabilities must
have equal access to lunchrooms, employee lounges, rest rooms,
meeting rooms, and other employer-provided or sponsored services
such as health programs, transportation, and social events.
(See Chapter VII for further discussion of
this requirement).
3.4 Some Basic Principles of Reasonable
Accommodation
A reasonable accommodation must be an effective
accommodation. It must provide an opportunity for a person with
a disability to achieve the same level of performance or to enjoy
benefits or privileges equal to those of an average similarly-situated
non-disabled person. However, the accommodation does not have
to ensure equal results or provide exactly the same benefits or
privileges.
For example: An employer provides an employee
lunchroom with food and beverages on the second floor of a building
that has no elevator. If it would be an undue hardship to install
an elevator for an employee who uses a wheelchair, the employer
must provide a comparable facility on the first floor. The facility
does not have to be exactly the same as that on the second floor,
but must provide food, beverages and space for the disabled employee
to eat with co-workers. It would not be a reasonable accommodation
merely to provide a place for this employee to eat by himself.
Nor would it be a reasonable accommodation to provide a separate
facility for the employee if access to the common facility could
be provided without undue hardship. For example, if the lunchroom
was only several steps up, a portable ramp could provide access.
The reasonable accommodation obligation applies
only to accommodations that reduce barriers to employment related
to a person's disability; it does not apply to accommodations
that a disabled person may request for some other reason.
For example: Reassignment is one type of accommodation
that may be required under the ADA. If an employee whose job requires
driving loses her sight, reassignment to a vacant position that
does not require driving would be a reasonable accommodation,
if the employee is qualified for that position with or without
an accommodation. However, if a blind computer operator working
at an employer's Michigan facility requested reassignment to a
facility in Florida because he prefers to work in a warmer climate,
this would not be a reasonable accommodation required by the ADA.
In the second case, the accommodation is not needed because of
the employee's disability.
A reasonable accommodation need not be the
best accommodation available, as long as it is effective for the
purpose; that is, it gives the person with a disability an equal
opportunity to be considered for a job, to perform the essential
functions of the job, or to enjoy equal benefits and privileges
of the job.
For example: An employer would not have to
hire a full-time reader for a blind employee if a co-worker is
available as a part-time reader when needed, and this will enable
the blind employee to perform his job duties effectively.
An employer is not required to provide an
accommodation that is primarily for personal use. Reasonable accommodation
applies to modifications that specifically assist an individual
in performing the duties of a particular job. Equipment or devices
that assist a person in daily activities on and off the job are
considered personal items that an employer is not required to
provide. However, in some cases, equipment that otherwise would
be considered "personal" may be required as an accommodation if
it is specifically designed or required to meet job-related rather
than personal needs.
For example: An employer generally would not
be required to provide personal items such as eyeglasses, a wheelchair,
or an artificial limb. However, the employer might be required
to provide a person who has a visual impairment with glasses that
are specifically needed to use a computer monitor. Or, if deep
pile carpeting in a work area makes it impossible for an individual
to use a manual wheelchair, the employer may need to replace the
carpet, place a usable surface over the carpet in areas used by
the employee, or provide a motorized wheelchair.
The ADA's requirements for certain types of
adjustments and modifications to meet the reasonable accommodation
obligation do not prevent an employer from providing accommodations
beyond those required by the ADA.
For example: "Supported employment" programs
may provide free job coaches and other assistance to enable certain
individuals with severe disabilities to learn and/or to progress
in jobs. These programs typically require a range of modifications
and adjustments to customary employment practices. Some of these
modifications may also be required by the ADA as reasonable accommodations.
However, supported employment programs may require modifications
beyond those required under the ADA, such as restructuring of
essential job functions. Many employers have found that supported
employment programs are an excellent source of reliable productive
new employees. Participation in these programs advances the underlying
goal of the ADA - - to increase employment opportunities for people
with disabilities. Making modifications for supported employment
beyond those required by the ADA in no way violates the ADA.
3.5 Some Examples of Reasonable Accommodation
The statute and EEOC's regulations provide
examples of common types of reasonable accommodation that an employer
may be required to provide, but many other accommodations may
be appropriate for particular situations. Accommodations may include:
- making facilities readily accessible
to and usable by an individual with a disability;
- restructuring a job by reallocating
or redistributing marginal job functions;
- altering when or how an essential
job function is performed;
- part-time or modified work schedules;
- obtaining or modifying equipment
or devices;
- modifying examinations, training
materials or policies;
- providing qualified readers and
interpreters;
- reassignment to a vacant position;
- permitting use of accrued paid
leave or unpaid leave for necessary treatment;
- providing reserved parking for
a person with a mobility impairment; and
- allowing an employee to provide
equipment or devices that an employer is not required to provide.
These and other types of reasonable accommodation
are discussed in the pages that follow. However, the examples
in this Manual cannot cover the range of potential accommodations,
because every reasonable accommodation must be determined on an
individual basis. A reasonable accommodation always must take
into consideration two unique factors:
- the specific abilities and functional limitations
of a particular applicant or employee with a disability; and
- the specific functional requirements of
a particular job.
In considering an accommodation, the focus
should be on the abilities and limitations of the individual,
not on the name of a disability or a particular physical or mental
condition. This is necessary because people who have any particular
disability may have very different abilities and limitations.
Conversely, people with different kinds of disabilities may have
similar functional limitations.
For example: If it is an essential function
of a job to press a foot pedal a certain number of times a minute
and an individual with a disability applying for the job has some
limitation that makes this difficult or impossible, the accommodation
process should focus on ways that this person might be able to
do the job function, not on the nature of her disability or on
how persons with this kind of disability generally might be able
to perform the job.
3.6 Who Is Entitled to a Reasonable Accommodation?
As detailed in Chapter II, an individual is
entitled to a reasonable accommodation if s/he:
meets the ADA definition of "a qualified individual
with a disability" (meets all prerequisites for performing the
essential functions of a job [being considered for a job or enjoying
equal benefits and privileges of a job] except any that cannot
be met because of a disability).
If there is a reasonable accommodation that
will enable this person to perform the essential functions of
a job (be considered, or receive equal benefits, etc.), the employer
is obligated to provide it, unless it would impose an undue hardship
on the operation of the business.
When is an Employer Obligated to Make a
ReasonableAccommodation?
An employer is obligated to make an accommodation
only to the known limitations of an otherwise qualified individual
with a disability. In general, it is the responsibility of the
applicant or employee with a disability to inform the employer
that an accommodation is needed to participate in the application
process, to perform essential job functions or to receive equal
benefits and privileges of employment. An employer is not required
to provide an accommodation if unaware of the need.
However, the employer is responsible for notifying
job applicants and employees of its obligation to provide accommodations
for otherwise qualified individuals with disabilities.
The ADA requires an employer to post notices
containing the provisions of the ADA, including the reasonable
accommodation obligation, in conspicuous places on its premises.
Such notices should be posted in employment offices and other
places where applicants and employees can readily see them. EEOC
provides posters for this purpose. (See Chapter I for additional
information on the required notice.)
Information about the reasonable accommodation
obligation also can be included in job application forms, job
vacancy notices, and in personnel manuals, and may be communicated
orally.
An applicant or employee does not have to
specifically request a "reasonable accommodation," but must only
let the employer know that some adjustment or change is needed
to do a job because of the limitations caused by a disability.
If a job applicant or employee has a "hidden"
disability - - one that is not obvious - - it is up to that individual
to make the need for an accommodation known. If an applicant has
a known disability, such as a visible disability, that appears
to limit, interfere with, or prevent the individual from performing
job-related functions, the employer may ask the applicant to describe
or demonstrate how s/he would perform the function with or without
a reasonable accommodation. Chapter V provides guidance on how
to make such an inquiry without violating the ADA prohibition
against pre-employment inquiries in the application and interview
process.
If an employee with a known disability is
not performing well or is having difficulty in performing a job,
the employer should assess whether this is due to a disability.
The employer may inquire at any time whether the employee needs
an accommodation.
Documentation of Need for Accommodation
If an applicant or employee requests an accommodation
and the need for the accommodation is not obvious, or if the employer
does not believe that the accommodation is needed, the employer
may request documentation of the individual's functional limitations
to support the request.
For example: An employer may ask for written
documentation from a doctor, psychologist, rehabilitation counselor,
occupational or physical therapist, independent living specialist,
or other professional with knowledge of the person's functional
limitations. Such documentation might indicate, for example, that
this person cannot lift more than 15 pounds without assistance.
3.7 How Does an Employer Determine What
Is a Reasonable Accommodation?
When a qualified individual with a disability
requests an accommodation, the employer must make a reasonable
effort to provide an accommodation that is effective for the individual
(gives the individual an equally effective opportunity to apply
for a job, perform essential job functions, or enjoy equal benefits
and privileges).
In many cases, an appropriate accommodation
will be obvious and can be made without difficulty and at little
or no cost. Frequently, the individual with a disability can suggest
a simple change or adjustment, based on his or her life or work
experience.
An employer should always consult the person
with the disability as the first step in considering an accommodation.
Often this person can suggest much simpler and less costly accommodations
than the employer might have believed necessary.
For example: A small employer believed it
necessary to install a special lower drinking fountain for an
employee using a wheelchair, but the employee indicated that he
could use the existing fountain if paper cups were provided in
a holder next to the fountain.
However, in some cases, the appropriate accommodation
may not be so easy to identify. The individual requesting the
accommodation may not know enough about the equipment being used
or the exact nature of the worksite to suggest an accommodation,
or the employer may not know enough about the individual's functional
limitations in relation to specific job tasks.
In such cases, the employer and the individual
with a disability should work together to identify the appropriate
accommodation. EEOC regulations require, when necessary, an informal,
interactive process to find an effective accommodation. The process
is described below in relation to an accommodation that will enable
an individual with a disability to perform the essential functions
of a job. However, the same approach can be used to identify accommodations
for job applicants and accommodations to provide equal benefits
and privileges of employment.
3.8 A process for identifying a reasonable
accommodation
1. Look at the particular job involved. Determine
its purpose and its essential functions.
Chapter II recommended that the essential
functions of the job be identified before advertising or interviewing
for a job. However, it is useful to reexamine the specific job
at this point to determine or confirm its essential functions
and requirements.
2. Consult with the individual with a disability
to find out his or her specific physical or mental abilities and
limitations as they relate to the essential job functions. Identify
the barriers to job performance and assess how these barriers
could be overcome with an accommodation.
3. In consultation with the individual, identify
potential accommodations and assess how effective each would be
in enabling the individual to perform essential job functions.
If this consultation does not identify an appropriate accommodation,
technical assistance is available from a number of sources, many
without cost. There are also financial resources to help with
accommodation costs. (See Financial and Technical Assistance for
Accommodations, 4.1 below).
4. If there are several effective accommodations
that would provide an equal employment opportunity, consider the
preference of the individual with a disability and select the
accommodation that best serves the needs of the individual and
the employer.
If more than one accommodation would be effective
for the individual with a disability, or if the individual would
prefer to provide his or her own accommodation, the individual's
preference should be given first consideration. However, the employer
is free to choose among effective accommodations, and may choose
one that is less expensive or easier to provide.
The fact that an individual is willing to
provide his or her own accommodation does not relieve the employer
of the duty to provide this or another reasonable accommodation
should this individual for any reason be unable or unwilling to
continue to provide the accommodation.
Examples of the Reasonable Accommodation
Process:
- A "sack-handler" position requires that
the employee in this job pick up 50 pound sacks from a loading
dock and carry them to the storage room. An employee who is
disabled by a back impairment requests an accommodation. The
employer analyzes the job and finds that its real purpose and
essential function is to move the sacks from the loading dock
to the store room. The person in the job does not necessarily
have to lift and carry the sacks. The employer consults with
the employee to determine his exact physical abilities and limitations.
With medical documentation, it is determined that this person
can lift 50 pound sacks to waist level, but cannot carry them
to the storage room. A number of potential accommodations are
identified: use of a dolly, a hand-truck or a cart. The employee
prefers the dolly. After considering the relative cost, efficiency,
and availability of the alternative accommodations, and after
considering the preference of the employee, the employer provides
the dolly as an accommodation. In this case, the employer found
the dolly to be the most cost-effective accommodation, as well
as the one preferred by the employee. If the employer had found
a hand-truck to be as efficient, it could have provided the
hand-truck as a reasonable accommodation.
- A company has an opening for a warehouse
foreman. Among other functions, the job requires checking stock
for inventory, completing bills of lading and other reports,
and using numbers. To perform these functions, the foreman must
have good math skills. An individual with diabetes who has good
experience performing similar warehouse supervisory functions
applies for the job. Part of the application process is a computerized
test for math skills, but the job itself does not require use
of a computer. The applicant tells the employer that although
he has no problem reading print, his disability causes some
visual impairment which makes it difficult to read a computer
screen. He says he can take the test if it is printed out by
the computer. However, this accommodation won't work, because
the computer test is interactive, and the questions change based
on the applicant's replies to each previous question. Instead,
the employer offers a reader as an accommodation; this provides
an effective equivalent method to test the applicant's math
skills.
An individual with a disability is not required
to accept an accommodation if the individual has not requested
an accommodation and does not believe that one is needed. However,
if the individual refuses an accommodation necessary to perform
essential job functions, and as a result cannot perform those
functions, the individual may not be considered qualified.
For example: An individual with a visual impairment
that restricts her field of vision but who is able to read would
not be required to accept a reader as an accommodation. However,
if this person could not read accurately unaided, and reading
is an essential function of the job, she would not be qualified
for the job if she refused an accommodation that would enable
her to read accurately.
3.9 The Undue Hardship Limitation
An employer is not required to make a reasonable
accommodation if it would impose an undue hardship on the operation
of the business. However, if a particular accommodation would
impose an undue hardship, the employer must consider whether there
are alternative accommodations that would not impose such hardship.
An undue hardship is an action that requires
"significant difficulty or expense" in relation to the size of
the employer, the resources available, and the nature of the operation.
Accordingly, whether a particular accommodation
will impose an undue hardship must always be determined on a case-by-case
basis. An accommodation that poses an undue hardship for one employer
at a particular time may not pose an undue hardship for another
employer, or even for the same employer at another time. In general,
a larger employer would be expected to make accommodations requiring
greater effort or expense than would be required of a smaller
employer.
The concept of undue hardship includes any
action that is:
- unduly costly;
- extensive;
- substantial;
- disruptive; or
- that would fundamentally alter
the nature or operation of the business.
The statute and regulations provide factors
to be considered in determining whether an accommodation uld impose
an undue hardship on a particular business:
1. The nature and net cost of the accommodation
needed.
The cost of an accommodation that is considered
in determining undue hardship will be the actual cost to the employer.
Specific Federal tax credits and tax deductions are available
to employers for making accommodations required by the ADA, and
there are also sources of funding to help pay for some accommodations.
If an employer can receive tax credits or tax deductions or partial
funding for an accommodation, only the net cost to the employer
will be considered in a determination of undue hardship. (See
Financial and Technical Assistance for Accommodations, 4.1 below);
2. The financial resources of the facility
making the accommodation, the number of employees at this facility,
and the effect on expenses and resources of the facility.
If an employer has only one facility, the
cost and impact of the accommodation will be considered in relation
to the effect on expenses and resources of that facility. However,
if the facility is part of a larger entity that is covered by
the ADA, factors 3. and 4. below also will be considered in determinations
of undue hardship.
3. The overall financial resources, size,
number of employees, and type and location of facilities of the
entity covered by the ADA (if the facility involved in the accommodation
is part of a larger entity).
4. The type of operation of the covered entity,
including the structure and functions of the workforce, the geographic
separateness, and the administrative or fiscal relationship of
the facility involved in making the accommodation to the larger
entity.
Factor 4. may include consideration of special
types of employment operations, on a case-by-case basis, where
providing a particular accommodation might be an undue hardship.
For example: It might "fundamentally alter"
the nature of a temporary construction site or be unduly costly
to make it physically accessible to an employee using a wheelchair,
if the terrain and structures are constantly changing as construction
progresses.
Factor 4. will be considered, along with factors
2. and 3., where a covered entity operates more than one facility,
in order to assess the financial resources actually available
to the facility making the accommodation, in light of the interrelationship
between the facility and the covered entity. In some cases, consideration
of the resources of the larger covered entity may not be justified,
because the particular facility making the accommodation may not
have access to those resources.
For example: A local, independently owned
fast food franchise of a national company that receives no funding
from that company may assert that it would be an undue hardship
to provide an interpreter to enable a deaf applicant for store
manager to participate in weekly staff meetings, because its own
resources are inadequate and it has no access to resources of
the national company. If the financial relationship between the
national company and the local company is limited to payment of
an annual franchise fee, only the resources of the local franchise
would be considered in determining whether this accommodation
would be an undue hardship. However, if the facility was part
of a national company with financial and administrative control
over all of its facilities, the resources of the company as a
whole would be considered in making this determination.
5.The impact of the accommodation on the
operation of the facility that is making the accommodation.
This may include the impact on the ability
of other employees to perform their duties and the impact on the
facility's ability to conduct business.
An employer may be able to show that providing
a particular accommodation would be unduly disruptive to its other
employees or to its ability to conduct business.
For example: If an employee with a disability
requested that the thermostat in the workplace be raised to a
certain level to accommodate her disability, and this level would
make it uncomfortably hot for other employees or customers, the
employer would not have to provide this accommodation. However,
if there was an alternative accommodation that would not be an
undue hardship, such as providing a space heater or placing the
employee in a room with a separate thermostat, the employer would
have to provide that accommodation.
For example: A person with a visual impairment
who requires bright light to see well applies for a waitress position
at an expensive nightclub. The club maintains dim lighting to
create an intimate setting, and lowers its lights further during
the floor show. If the job applicant requested bright lighting
as an accommodation so that she could see to take orders, the
employer could assert that this would be an undue hardship, because
it would seriously affect the nature of its operation.
In determining whether an accommodation would
cause an undue hardship, an employer may consider the impact of
an accommodation on the ability of other employees to do their
jobs. However, an employer may not claim undue hardship solely
because providing an accommodation has a negative impact on the
morale of other employees. Nor can an employer claim undue
hardship because of "disruption" due to employees' fears about,
or prejudices toward, a person's disability.
For example: If restructuring a job to accommodate
an individual with a disability creates a heavier workload for
other employees, this may constitute an undue hardship. But if
other employees complain because an individual with a disability
is allowed to take additional unpaid leave or to have a special
flexible work schedule as a reasonable accommodation, such complaints
or other negative reactions would not constitute an undue hardship.
For example: If an employee objects to working
with an individual who has a disability because the employee feels
uncomfortable or dislikes being near this person, this would not
constitute an undue hardship. In this case, the problem is caused
by the employee's fear or prejudice toward the individual's disability,
not by an accommodation.
Problems of employee morale and employee negative
attitudes should be addressed by the employer through appropriate
consultations with supervisors and, where relevant, with union
representatives. Employers also may wish to provide supervisors,
managers and employees with "awareness" training, to help overcome
fears and misconceptions about disabilities, and to inform them
of the employer's obligations under the ADA.
Other Cost Issues
An employer may not claim undue hardship simply
because the cost of an accommodation is high in relation to an
employee's wage or salary. When enacting the ADA "factors" for
determining undue hardship, Congress rejected a proposed amendment
that would have established an undue hardship if an accommodation
exceeded 10% of an individual's salary. This approach was rejected
because it would unjustifiably harm lower-paid workers who need
accommodations. Instead, Congress clearly established that the
focus for determining undue hardship should be the resources available
to the employer.
If an employer finds that the cost of an accommodation
would impose an undue hardship and no funding is available from
another source, an applicant or employee with a disability should
be offered the option of paying for the portion of the cost that
constitutes an undue hardship, or of providing the accommodation.
For example: If the cost of an assistive device
is $2000, and an employer believes that it can demonstrate that
spending more than $1500 would be an undue hardship, the individual
with a disability should be offered the option of paying the additional
$500. Or, if it would be an undue hardship for an employer to
purchase brailling equipment for a blind applicant, the applicant
should be offered the option of providing his own equipment (if
there is no other effective accommodation that would not impose
an undue hardship).
The terms of a collective bargaining agreement
may be relevant in determining whether an accommodation would
impose an undue hardship.
For example: A worker who has a deteriorated
disc condition and cannot perform the heavy labor functions of
a machinist job, requests reassignment to a vacant clerk's job
as a reasonable accommodation. If the collective bargaining agreement
has specific seniority lists and requirements governing each craft,
it might be an undue hardship to reassign this person if others
had seniority for the clerk's job.
However, since both the employer and the union
are covered by the ADA's requirements, including the duty to provide
a reasonable accommodation, the employer should consult with the
union and try to work out an acceptable accommodation.
To avoid continuing conflicts between a collective
bargaining agreement and the duty to provide reasonable accommodation,
employers may find it helpful to seek a provision in agreements
negotiated after the effective date of the ADA permitting the
employer to take all actions necessary to comply with this law.
(See Chapter VII.)
3.10 Examples of Reasonable Accommodations
1. Making Facilities Accessible and Usable
The ADA establishes different requirements
for accessibility under different sections of the Act. A private
employer's obligation to make its facilities accessible to its
job applicants and employees under Title I of the ADA differs
from the obligation of a place of public accommodation to provide
access in existing facilities to its customers and clients, and
from the obligations of public accommodations and commercial facilities
to provide accessibility in renovated or newly constructed buildings
under Title III of the Act. The obligation of a state and local
government to provide access for applicants and employees under
Title I also differs from its obligation to provide accessibility
under Title II of the ADA.
The employer's obligation under Title I is
to provide access for an individual applicant to participate in
the job application process, and for an individual employee with
a disability to perform the essential functions of his/her job,
including access to a building, to the work site, to needed equipment,
and to all facilities used by employees. The employer must provide
such access unless it would cause an undue hardship.
Under Title I, an employer is not required
to make its existing facilities accessible until a particular
applicant or employee with a particular disability needs an accommodation,
and then the modifications should meet that individual's work
needs. The employer does not have to make changes to provide access
in places or facilities that will not be used by that individual
for employment related activities or benefits.
In contrast, Title III of the ADA requires
that places of public accommodation (such as banks, retail stores,
theaters, hotels and restaurants) make their goods and services
accessible generally, to all people with disabilities. Under Title
III, existing buildings and facilities of a public accommodation
must be made accessible by removing architectural barriers or
communications barriers that are structural in nature, if this
is "readily achievable." If this is not "readily achievable,"
services must be provided to people with disabilities in some
alternative manner if this is "readily achievable."
The obligation for state and local governments
to provide "program accessibility" in existing facilities under
Title II also differs from their obligation to provide access
as employers under Title I. Title II requires that these governments
operate each service, program or activity in existing facilities
so that, when viewed in its entirety, it is readily accessible
to and useable by persons with disabilities, unless this would
cause a "fundamental alteration" in the nature of the program
or service, or would result in "undue financial and administrative
burdens."
In addition, private employers that occupy
commercial facilities or operate places of public accommodation
and state and local governments must conform to more extensive
accessibility requirements under Title III and Title II when making
alterations to existing facilities or undertaking new construction.
(see Requirements for Renovation and New Construction below.)
The accessibility requirements under Title
II and III are established in Department of Justice regulations.
Employers may contact the Justice Department's Office on the Americans
with Disabilities Act for information on these requirements and
for copies of the regulations with applicable accessibility guidelines
(see Resource Directory).
When making changes to meet an individual's
needs under Title I, an employer will find it helpful to consult
the applicable Department of Justice accessibility guidelines
as a starting point. It is advisable to make changes that conform
to these guidelines, if they meet the individual's needs and do
not impose an undue hardship, since such changes will be useful
in the future for accommodating others. However, even if a modification
meets the standards required under Title II or III, further adaptations
may be needed to meet the needs of a particular individual.
For example: A restroom may be modified to
meet standard accessibility requirements (including wider door
and stalls, and grab bars in specified locations) but it may be
necessary to install a lower grab bar for a very short person
in a wheelchair so that this person can transfer from the chair
to the toilet.
Although the requirement for accessibility
in employment is triggered by the needs of a particular individual,
employers should consider initiating changes that will provide
general accessibility, particularly for job applicants, since
it is likely that people with disabilities will apply for jobs
in the future.
For example: Employment offices and interview
facilities should be accessible to people using wheelchairs and
others with mobility impairments. Plans also should be in place
for making job information accessible and for communicating with
people who have visual or hearing impairments. (See Chapter V.
for additional guidance on accommodation in the application process.)
Accessibility to Perform the Essential
Functions of the Job
The obligation to provide accessibility for
a qualified individual with a disability includes accessibility
of the job site itself and all work-related facilities.
Examples of accommodations that may be needed
to make facilities accessible and usable include:
- installing a ramp at the entrance
to a building;
- removing raised thresholds;
- reserving parking spaces close
to the work site that are wide enough to allow people using
wheelchairs to get in and out of vehicles;
- making restrooms accessible,
including toilet stalls, sinks, soap, and towels;
- rearranging office furniture
and equipment;
- making a drinking fountain accessible
(for example, by installing a paper cup dispenser);
- making accessible, and providing
an accessible "path of travel" to, equipment and facilities
used by an employee, such as copying machines, meeting and training
rooms, lunchrooms and lounges;
- removing obstacles that might
be potential hazards in the path of people without vision;
- adding flashing lights when alarm
bells are normally used, to alert an employee with a hearing
impairment to emergencies.
Requirements for Renovation or New Construction
While an employer's requirements for accessibility
under Title I relate to accommodation of an individual, as described
above, employers will have more extensive accessibility requirements
under Title II or III of the ADA if they make renovations to their
facilities or undertake new construction.
Title III of the ADA requires that any alterations
to, or new construction of "commercial facilities," as well as
places of public accommodation, made after January 26, 1992, must
conform to the "ADA Accessibility Guidelines" (incorporated in
Department of Justice Title III regulations). "Commercial facilities"
are defined as any nonresidential facility whose operations affect
commerce, including office buildings, factories and warehouses;
therefore, the facilities of most employers will be subject to
this requirement. An alteration is any change that affects the
"usability" of a facility; it does not include normal maintenance,
such as painting, roofing or changes to mechanical or electrical
systems, unless the changes affect the "usability" of the facility.
For example: If, during remodeling or renovation,
a doorway is relocated, the new doorway must be wide enough to
meet the requirements of the ADA Accessibility Guidelines.
Under Title III, all newly constructed public
accommodations and commercial facilities for which the last building
permit is certified after January 26, 1992, and which are occupied
after January 26, 1993, must be accessible in accordance with
the standards of the ADA Accessibility Guidelines. However, Title
III does not require elevators in facilities under 3 stories or
with less than 3000 square feet per floor, unless the building
is a shopping center, mall, professional office of a health provider,
or public transportation station.
Under Title II, any alterations to, or new
construction of, State or local government facilities made after
January 26, 1992, must conform either with the ADA Accessibility
Guidelines (however, the exception regarding elevators does not
apply to State or local governments) or with the Uniform Federal
Accessibility Standards. Facilities under design on January 26,
1992 must comply with this requirement if bids were invited after
that date.
Providing accessibility in remodeled and new
buildings usually can be accomplished at minimal additional cost.
Over time, fully accessible new and remodeled buildings will reduce
the need for many types of individualized reasonable accommodations.
Employers planning alterations to their facilities or new construction
should contact the Office on the Americans with Disabilities Act
in the U.S. Department of Justice for information on accessibility
requirements, including the ADA Accessibility Guidelines and the
Uniform Federal Accessibility Guidelines. Employers may get specific
technical information and guidance on accessibility by calling,
toll-free, the Architectural and Transportation Barriers Compliance
Board, at 1-800-USA-ABLE. (See Resource Directory.)
2. Job Restructuring
Job restructuring or job modification is a
form of reasonable accommodation which enables many qualified
individuals with disabilities to perform jobs effectively. Job
restructuring as a reasonable accommodation may involve reallocating
or redistributing the marginal functions of a job. However, an
employer is not required to reallocate essential functions of
a job as a reasonable accommodation. Essential functions, by definition,
are those that a qualified individual must perform, with or without
an accommodation.
For example: Inspection of identification
cards is generally an essential function of the job of a security
job. If a person with a visual impairment could not verify the
identification of an individual using the photo and other information
on the card, the employer would not be required to transfer this
function to another employee.
Job restructuring frequently is accomplished
by exchanging marginal functions of a job that cannot be performed
by a person with a disability for marginal job functions performed
by one or more other employees.
For example: An employer may have two jobs,
each containing essential functions and a number of marginal functions.
The employer may hire an individual with a disability who can
perform the essential functions of one job and some, but not all,
of the marginal functions of both jobs. As an accommodation, the
employer may redistribute the marginal functions so that all of
the functions that can be performed by the person with a disability
are in this person's job and the remaining marginal functions
are transferred to the other job.
Although an employer is not required to reallocate
essential job functions, it may be a reasonable accommodation
to modify the essential functions of a job by changing when or
how they are done.
For example:
- An essential function that is usually performed
in the early morning might be rescheduled to be performed later
in the day, if an individual has a disability that makes it
impossible to perform this function in the morning, and this
would not cause an undue hardship.
- A person who has a disability that makes
it difficult to write might be allowed to computerize records
that have been maintained manually.
- A person with mental retardation who can
perform job tasks but has difficulty remembering the order in
which to do the tasks might be provided with a list to check
off each task; the checklist could be reviewed by a supervisor
at the end of the day.
Technical assistance in restructuring or modifying
jobs for individuals with specific limitations can be obtained
from state vocational rehabilitation agencies and other organizations
with expertise in job analysis and job restructuring for people
with various disabilities. (See Job Restructuring and Job Modification
in Resource Directory Index.)
3. Modified Work Schedules
An employer should consider modification of
a regular work schedule as a reasonable accommodation unless this
would cause an undue hardship. Modified work schedules may include
flexibility in work hours or the work week, or part-time work,
where this will not be an undue hardship.
Many people with disabilities are fully qualified
to perform jobs with the accommodation of a modified work schedule.
Some people are unable to work a standard 9-5 work day, or a standard
Monday to Friday work week; others need some adjustment to regular
schedules.
Some examples of modified work schedules as
a reasonable accommodation:
- An accountant with a mental disability
required two hours off, twice weekly, for sessions with a psychiatrist.
He was permitted to take longer lunch breaks and to make up
the time by working later on those days.
- A machinist has diabetes and must follow
a strict schedule to keep blood sugar levels stable. She must
eat on a regular schedule and take insulin at set times each
day. This means that she cannot work the normal shift rotations
for machinists. As an accommodation, she is assigned to one
shift on a permanent basis.
- An employee who needs kidney dialysis treatment
is unable to work on two days because his treatment is only
available during work hours on weekdays. Depending on the nature
of his work and the nature of the employer's operation, it may
be possible, without causing an undue hardship, for him to work
Saturday and Sunday in place of the two weekdays, to perform
work assignments at home on the weekend, or to work three days
a week as part-time employee.
People whose disabilities may need modified
work schedules include those who require special medical treatment
for their disability (such as cancer patients, people who have
AIDS, or people with mental illness); people who need rest periods
(including some people who have multiple sclerosis, cancer, diabetes,
respiratory conditions, or mental illness); people whose disabilities
(such as diabetes) are affected by eating or sleeping schedules;
and people with mobility and other impairments who find it difficult
to use public transportation during peak hours, or who must depend
upon special para-transit schedules.
4. Flexible Leave Policies
Flexible leave policies should be considered
as a reasonable accommodation when people with disabilities require
time off from work because of their disability. An employer is
not required to provide additional paid leave as an accommodation,
but should consider allowing use of accrued leave, advanced leave,
or leave without pay, where this will not cause an undue hardship.
People with disabilities may require special
leave for a number of reasons related to their disability, such
as:
- medical treatment related to the disability;
- repair of a prosthesis or equipment;
- temporary adverse conditions in the work
environment (for example, an air-conditioning breakdown causing
temperature above 85 degrees could seriously harm the condition
of a person with multiple sclerosis);
- training in the use of an assistive device
or a dog guide. (However, if an assistive device is used at
work and provided as a reasonable accommodation, and if other
employees receive training during work hours, the disabled employee
should receive training on this device during work hours, without
need to take leave.)
5. Reassignment to a Vacant Position
In general, the accommodation of reassignment
should be considered only when an accommodation is not possible
in an employee's present job, or when an accommodation in the
employee's present job would cause an undue hardship. Reassignment
also may be a reasonable accommodation if both employer and employee
agree that this is more appropriate than accommodation in the
present job.
Consideration of reassignment is only required
for employees. An employer is not required to consider a different
position for a job applicant if s/he is not able to perform the
essential functions of the position s/he is applying for, with
or without reasonable accommodation.
Reassignment may be an appropriate accommodation
when an employee becomes disabled, when a disability becomes more
severe, or when changes or technological developments in equipment
affect the job performance of an employee with a disability. If
there is no accommodation that will enable the person to perform
the present job, or if it would be an undue hardship for the employer
to provide such accommodation, reassignment should be considered.
Reassignment may not be used to limit, segregate,
or otherwise discriminate against an employee with a disability.
An employer may not reassign people with disabilities only to
certain undesirable positions, or only to certain offices or facilities.
Reassignment should be made to a position
equivalent to the one presently held in terms of pay and other
job status, if the individual is qualified for the position and
if such a position is vacant or will be vacant within a reasonable
amount of time. A "reasonable amount of time" should be determined
on a case-by-case basis, considering relevant factors such as
the types of jobs for which the employee with a disability would
be qualified; the frequency with which such jobs become available;
the employer's general policies regarding reassignments of employees;
and any specific policies regarding sick or injured employees.
For example: If there is no vacant position
available at the time that an individual with a disability requires
a reassignment, but the employer knows that an equivalent position
for which this person is qualified will become vacant within one
or two weeks, the employer should reassign the individual to the
position when it becomes available.
An employer may reassign an individual to
a lower graded position if there are no accommodations that would
enable the employee to remain in the current position and there
are no positions vacant or soon to be vacant for which the employee
is qualified (with or without an accommodation). In such a situation,
the employer does not have to maintain the individual's salary
at the level of the higher graded position, unless it does so
for other employees who are reassigned to lower graded positions.
An employer is not required to create a new
job or to bump another employee from a job in order to provide
reassignment as a reasonable accommodation. Nor is an employer
required to promote an individual with a disability to make such
an accommodation.
6. Acquisition or Modification of Equipment
and Devices
Purchase of equipment or modifications to
existing equipment may be effective accommodations for people
with many types of disabilities.
There are many devices that make it possible
for people to overcome existing barriers to performing functions
of a job. These devices range from very simple solutions, such
as an elastic band that can enable a person with cerebral palsy
to hold a pencil and write, to "high-tech" electronic equipment
that can be operated with eye or head movements by people who
cannot use their hands.
There are also many ways to modify standard
equipment so as to enable people with different functional limitations
to perform jobs effectively and safely.
Many of these assistive devices and modifications
are inexpensive. Frequently, applicants and employees with disabilities
can suggest effective low cost devices or equipment. They have
had a great deal of experience in accommodating their disabilities,
and many are informed about new and available equipment. Where
the job requires special adaptations of equipment, the employer
and the applicant or employee should use the process described
earlier (see 3.8) to identify the exact functional abilities and
limitations of the individual in relation to functional job needs,
and to determine what type of assistance may be needed.
There are many sources of technical assistance
to help identify and locate devices and equipment for specific
job applications. An employer may be able to get information needed
simply by telephoning the Job Accommodation Network, a free consulting
service on accommodations, or other sources listed under "Accommodations"
in the Resource Directory. Employers who need further assistance
may use resources such as vocational rehabilitation specialists,
occupational therapists and Independent Living Centers who will
come on site to conduct a job analysis and recommend appropriate
equipment or job modifications.
As indicated above (see 3.4), an employer
is only obligated to provide equipment that is needed to perform
a job; there is no obligation to provide equipment that the individual
uses regularly in daily life, such as glasses, a hearing aid or
a wheelchair. However, as previously stated, the employer may
be obligated to provide items of this nature if special adaptations
are required to perform a job.
For example: It may be a reasonable accommodation
to provide an employee with a motorized wheelchair if her job
requires movement between buildings that are widely separated,
and her disability prevents her operation of a wheelchair manually
for that distance, or if heavy, deep-pile carpeting prevents operation
of a manual wheelchair.
In some cases, it may be a reasonable accommodation
to allow an applicant or employee to provide and use equipment
that an employer would not be obligated to provide.
For example: It would be a reasonable accommodation
to allow an individual with a visual disability to provide his
own guide dog.
Some examples of equipment and devices that
may be reasonable accommodations:
- TDDs (Telecommunication Devices for the
Deaf) make it possible for people with hearing and/or speech
impairments to communicate over the telephone;
- telephone amplifiers are useful for people
with hearing impairments;
- special software for standard computers
and other equipment can enlarge print or convert print documents
to spoken words for people with vision and/or reading disabilities;
- tactile markings on equipment in brailled
or raised print are helpful to people with visual impairments;
- telephone headsets and adaptive light switches
can be used by people with cerebral palsy or other manual disabilities;
- talking calculators can be used by people
with visual or reading disabilities;
- speaker phones may be effective for people
who are amputees or have other mobility impairments.
Some examples of effective low cost assistive
devices as reported by the Job Accommodation Network and other
sources:
- A timer with an indicator light allowed
a medical technician who was deaf to perform laboratory tests.
Cost $27.00;
- A clerk with limited use of her hands was
provided a "lazy susan" file holder that enabled her to reach
all materials needed for her job. Cost $85.00;
- A groundskeeper who had limited use of
one arm was provided a detachable extension arm for a rake.
This enabled him to grasp the handle on the extension with the
impaired hand and control the rake with the functional arm.
Cost $20.00;
- A desk layout was changed from the right
to left side to enable a data entry operator who is visually
impaired to perform her job. Cost $0;
- A telephone amplifier designed to work
with a hearing aid allowed a plant worker to retain his job
and avoid transfer to a lower paid job. Cost $24.00;
- A blind receptionist was provided a light
probe which allowed her to determine which lines on the switchboard
were ringing, on hold, or in use. (A light-probe gives an audible
signal when held over an illuminated source.) Cost $50.00 to
$100.00;
- A person who had use of only one hand,
working in a food service position could perform all tasks except
opening cans. She was provided with a one-handed can opener.
Cost $35.00;
- Purchase of a light weight mop and a smaller
broom enabled an employee with Downs syndrome and congenital
heart problems to do his job with minimal strain. Cost under
$40;
- A truck driver had carpal tunnel syndrome
which limited his wrist movement and caused extreme discomfort
in cold weather. A special wrist splint used with a glove designed
for skin divers made it possible for him to drive even in extreme
weather conditions. Cost $55.00;
- A phone headset allowed an insurance salesman
with cerebral palsy to write while talking to clients. Rental
cost $6.00 per month;
- A simple cardboard form, called a "jig"
made it possible for a person with mental retardation to properly
fold jeans as a stock clerk in a retail store. Cost $0.
Many recent technological innovations make
it possible for people with severe disabilities to be very productive
employees. Although some of this equipment is expensive, Federal
tax credits, tax deductions, and other sources of financing are
available to help pay for higher cost equipment.
For example: A company hired a person who
was legally blind as a computer operator. The State Commission
for the Blind paid half of the cost of a braille terminal. Since
all programmers were provided with computers, the cost of the
accommodation to this employer was only one-half of the difference
in cost between the braille terminal and a regular computer. A
smaller company also would be eligible for a tax credit for such
cost. (See Tax Credit for Small Business, 4.1a below)
For sources of information and technical assistance
to help employers develop or locate "assistive devices and equipment,"
see this listing in the Index to the Resource Directory.
7. Adjusting and Modifying Examinations,
Training Materials, and Policies
An employer may be required to modify, adjust,
or make other reasonable accommodations in the ways that tests
and training are administered in order to provide equal employment
opportunities for qualified individuals with disabilities. Revisions
to other employment policies and practices also may be required
as reasonable accommodations.
a. Tests and Examinations
Accommodations may be needed to assure that
tests or examinations measure the actual ability of an individual
to perform job functions, rather than reflecting limitations caused
by the disability. The ADA requires that tests be given to people
who have sensory, speaking, or manual impairments in a format
that does not require the use of the impaired skill, unless that
is the job-related skill the test is designed to measure.
For example: An applicant who has dyslexia,
which causes difficulty in reading, should be given an oral rather
than a written test, unless reading is an essential function of
the job. Or, an individual with a visual disability or a learning
disability might be allowed more time to take a test, unless the
test is designed to measure speed required on a job.
The employer is only required to provide a
reasonable accommodation for a test if the individual with a disability
requests such an accommodation. But the employer has an obligation
to inform job applicants in advance that a test will be given,
so that an individual who needs an accommodation can make such
a request. (See Chapter V. for further guidance on accommodations
in testing.)
b. Training
Reasonable accommodation should be provided,
when needed, to give employees with disabilities equal opportunity
for training to perform their jobs effectively and to progress
in employment. Needed accommodations may include:
- providing accessible training sites;
- providing training materials in alternate
formats to accommodate a disability.
For example: An individual with a visual
disability may need training materials on tape, in large print,
or on a computer diskette. A person with mental retardation may
need materials in simplified language or may need help in understanding
test instructions;
- modifying the manner in which training
is provided.
For example: It may be a reasonable
accommodation to allow more time for training or to provide extra
assistance to people with learning disabilities or people with
mental impairments.
Additional guidance on accommodations in training
is provided in Chapter VII.
c. Other Policies
Adjustments to various existing policies may
be necessary to provide reasonable accommodation. As discussed
above (see 3.10.3 and 3.10.4), modifications to existing leave
policies and regular work hours may be required as accommodations.
Or, for example, a company may need to modify a policy prohibiting
animals in the work place, so that a visually impaired person
can use a guide dog. Policies on providing information to employees
may need adjustment to assure that all information is available
in accessible formats for employees with disabilities. Policies
on emergency evacuations should be adjusted to provide effective
accommodations for people with different disabilities. (See Chapter
VII).
8. Providing Qualified Readers
It may be a reasonable accommodation to provide
a reader for a qualified individual with a disability, if this
would not impose an undue hardship.
For example: A court has held under the Rehabilitation
Act that it was not an undue hardship for a large state agency
to provide full-time readers for three blind employees, in view
of its very substantial budget. However, it may be an undue hardship
for a smaller agency or business to provide such an accommodation.
In some job situations a reader may be the
most effective and efficient accommodation, but in other situations
alternative accommodations may enable an individual with a visual
disability to perform job tasks just as effectively.
When an applicant or employee has a visual
disability, the employer and the individual should use the "process"
outlined in 3.8 above to identify specific limitations of the
individual in relation to specific needs of the job and to assess
possible accommodations.
For example: People with visual impairments
perform many jobs that do not require reading. Where reading is
an essential job function, depending on the nature of a visual
impairment and the nature of job tasks, print magnification equipment
or a talking computer may be more effective for the individual
and less costly for an employer than providing another employee
as a reader. Where an individual has to read lengthy documents,
a reader who transcribes documents onto tapes may be a more effective
accommodation.
Providing a reader does not mean that it is
necessary to hire a full-time employee for this service. Few jobs
require an individual to spend all day reading. A reader may be
a part-time employee or full-time employee who performs other
duties. However, the person who reads to a visually impaired employee
must read well enough to enable the individual to perform his
or her job effectively. It would not be a reasonable accommodation
to provide a reader whose poor skills hinder the job performance
of the individual with a disability.
9. Providing Qualified Interpreters
Providing an interpreter on an "as-needed"
basis may be a reasonable accommodation for a person who is deaf
in some employment situations, if this does not impose an undue
hardship.
If an individual with a disability is otherwise
qualified to perform essential job functions, the employer's basic
obligation is to provide an accommodation that will enable this
person to perform the job effectively. A person who is deaf or
hearing-impaired should be able to communicate effectively with
others as required by the duties of the job. Identifying the needs
of the individual in relation to specific job tasks will determine
whether or when an interpreter may be needed. The resources available
to the employer would be considered in determining whether it
would be an undue hardship to provide such an accommodation.
For example: It may be necessary to obtain
a qualified interpreter for a job interview, because for many
jobs the applicant and interviewer must communicate fully and
effectively to evaluate whether the applicant is qualified to
do the job. Once hired, however, if the individual is doing clerical
work, research, computer applications, or other job tasks that
do not require much verbal communication, an interpreter may only
be needed occasionally. Interpretation may be necessary for training
situations, staff meetings or an employee party, so that this
person can fully participate in these functions. Communication
on the job may be handled through different means, depending on
the situation, such as written notes, "signing" by other employees
who have received basic sign language training, or by typing on
a computer or typewriter.
People with hearing impairments have different
communication needs and use different modes of communication.
Some use signing in American Sign Language, but others use sign
language that has different manual codes. Some people rely on
an oral interpreter who silently mouths words spoken by others
to make them easier to lip read. Many hearing-impaired people
use their voices to communicate, and some combine talking and
signing. The individual should be consulted to determine the most
effective means of communication.
Communication between a person who is deaf
and others through a supervisor and/or co-worker with basic sign
language training may be sufficient in many job situations. However,
where extensive discussions or complex subject matter is involved,
a trained interpreter may be needed to provide effective communication.
Experienced interpreters usually have received special training
and may be certified by a professional interpreting organization
or state or local Commission serving people who are deaf. (See
Resource Directory Index listing of "Interpreters" for information
about interpreters and how to obtain them).
10. Other Accommodations
There are many other accommodations that may
be effective for people with different disabilities in different
jobs. The examples of accommodations in EEOC regulations and the
examples in this Manual are not the only types of accommodations
that may be required. Some other accommodations that may be appropriate
include:
- making transportation provided by the employer
accessible;
- providing a personal assistant for certain
job-related functions, such as a page turner for a person who
has no hands, or a travel attendant to act as a sighted guide
to assist a blind employee on occasional business trips
- use of a job coach for people with mental
retardation and other disabilities who benefit from individualized
on-the job training and services provided at no cost by vocational
rehabilitation agencies in "supported employment" programs.
(See Resource Directory Index for "Supported Employment.")
3.11 Financial and Technical Assistance
for Accommodations
a. Financial Assistance
There are several sources of financial assistance
to help employers make accommodations and comply with ADA requirements.
1.Tax Credit for Small Business (Section
44 of the Internal Revenue Code)
In 1990, Congress established a special tax
credit to help smaller employers make accommodations required
by the ADA. An eligible small business may take a tax credit of
up to $5000 per year for accommodations made to comply with the
ADA. The credit is available for one-half the cost of "eligible
access expenditures" that are more than $250 but less than $10,250.
For example: If an accommodation cost $10,250,
an employer could get a tax credit of $5000 ($10,250 minus $250,
divided by 2). If the accommodation cost $7000, a tax credit of
$3375 would be available.
An eligible small business is one with gross
receipts of $l million or less for the taxable year, or 30 or
fewer full time employees.
"Eligible access expenditures" for which the
tax credit may be taken include the types of accommodations required
under Title I of the ADA as well as accessibility requirements
for commercial facilities and places of public accommodation under
Title III. "Eligible access expenditures" include:
- removal of architectural, communication,
physical, or transportation barriers to make the business accessible
to, or usable by, people with disabilities;
- providing qualified interpreters or other
methods to make communication accessible to people with hearing
disabilities;
- providing qualified readers, taped texts,
or other methods to make information accessible to people with
visual disabilities; and/or
- acquiring or modifying equipment or devices
for people with disabilities.
To be eligible for the tax credit, changes
made to remove barriers or to provide services, materials or equipment
must meet technical standards of the ADA Accessibility Guidelines,
where applicable.
2.Tax Deduction for Architectural and Transportation
Barrier Removal (Section 190 of the Internal Revenue Code)
Any business may take a full tax deduction,
up to $15,000 per year, for expenses of removing specified architectural
or transportation barriers. Expenses covered include costs of
removing barriers created by steps, narrow doors, inaccessible
parking spaces, toilet facilities, and transportation vehicles.
Both the tax credit and the tax deduction are available to eligible
small businesses.
For example: If a small business makes a qualified
expenditure of $24,000, it may take the $5000 tax credit for the
initial $10,250 and, if the remaining $13,750 qualifies under
Section 190, may deduct that amount from its taxable income. However,
a business may not receive a double benefit for the same expense:
for example, it may not take both the tax credit and the tax deduction
for $10,000 spent to renovate bathrooms.
Information on the Section 44 tax credit and
the Section 190 tax deduction can be obtained from a local IRS
office, or by contacting the Office of Chief Counsel, Internal
Revenue Service. (See Resource Directory.)
3.Targeted Jobs Tax Credit
Tax credits also are available under the Targeted
Jobs Tax Credit Program (TJTCP) for employers who hire individuals
with disabilities referred by state or local vocational rehabilitation
agencies, State Commissions on the Blind and the U.S. Department
of Veterans Affairs and certified by a State Employment Service.
This program promotes hiring of several "disadvantaged" groups,
including people with disabilities.
Under the TJTCP, a tax credit may be taken
for 40% of the first $6000 of an employee's first-year salary.
This program must be reauthorized each year by Congress, and currently
has been extended through June 30, 1992. Information about this
program can be obtained from the State Employment Services or
from State Governor's Committees on the Employment of People with
Disabilities. (See State listings in Resource Directory.)
4.Other Funding Sources
State or local vocational rehabilitation agencies
and State Commissions for the Blind can provide financial assistance
for equipment and accommodations for their clients. The U.S. Department
of Veterans Affairs also provides financial assistance to disabled
veterans for equipment needed to help perform jobs. Some organizations
that serve people with particular types of disabilities also provide
financial assistance for needed accommodations. Other types of
assistance may be available in the community. For example, some
Independent Living Centers provide transportation service to the
workplace for people with disabilities. For further information,
see "Financial Assistance for Accommodations" in Resource Directory
Index.
b. Technical Assistance
There are many sources of technical assistance
to help employers make effective accommodations for people with
different disabilities in various job situations. Many of these
resources are available without cost. Major resources for information,
assistance, and referral to local specialized resources are 10
new ADA Regional Business and Disability Technical Assistance
Centers that have been funded by Congress specifically to help
implement the ADA. These Centers have been established to provide
information, training and technical assistance to employers and
all other entities covered by the ADA and to people with disabilities.
The Centers also can refer employers to local technical assistance
sources. (See ADA Regional Business and Disability Technical Assistance
Centers in Resource Directory.) Other resources include:
State and local vocational rehabilitation
agencies
- Independent Living Centers in some
400 communities around the country provide technical assistance
to employers and people with disabilities on accessibility and
other accommodations and make referrals to specialized sources
of assistance.
- he Job Accommodation Network (JAN)
a free national consultant service, available through a toll-free
number, helps employers make individualized accommodations.
- ABLEDATA, a computerized database
of disability-related products and services, conducts customized
information searches on worksite modifications, assistive devices
and other accommodations.
- The President's Committee on Employment
of People with Disabilities provides technical information,
including publications with practical guidance on job analysis
and accommodations.
- Governors' Committees on Employment
of People with Disabilities in each State, allied with the
President's Committee, are local resources of information and
technical assistance.
These and many other sources of specialized
technical assistance are listed in the Resource Directory. The
Index to the Directory will be helpful in locating specific types
of assistance.
IV. ESTABLISHING NONDISCRIMINATORY
QUALIFICATION STANDARDS AND SELECTION CRITERIA
4.1 Introduction
The ADA does not prohibit an employer from
establishing job-related qualification standards, including education,
skills, work experience, and physical and mental standards necessary
for job performance, health and safety.
The Act does not interfere with an employer's
authority to establish appropriate job qualifications to hire
people who can perform jobs effectively and safely, and to hire
the best qualified person for a job. ADA requirements are designed
to assure that people with disabilities are not excluded from
jobs that they can perform.
ADA requirements apply to all selection standards
and procedures, including, but not limited to:
- education and work experience requirements;
- physical and mental requirements;
- safety requirements;
- paper and pencil tests;
- physical or psychological tests;
- interview questions; and
- rating systems.
4.2 Overview of Legal Obligations
- Qualification standards or selection criteria
that screen out or tend to screen out an individual with a disability
on the basis of disability must be job-related and consistent
with business necessity.
- Even if a standard is job-related and consistent
with business necessity, if it screens out an individual with
a disability on the basis of disability, the employer must
consider if the individual could meet the standard with
a reasonable accommodation.
- An employer is not required to lower existing
production standards applicable to the quality or quantity of
work for a given job in considering qualifications of an individual
with a disability, if these standards are uniformly applied
to all applicants and employees in that job.
- If an individual with a disability cannot
perform a marginal function of a job because of a disability,
an employer may base a hiring decision only on the individual's
ability to perform the essential functions of the job, with
or without a reasonable accommodation.
4.3 What is Meant by "Job-Related" and
"Consistent with Business Necessity"?
1. Job-Related
If a qualification standard, test or other
selection criterion operates to screen out an individual with
a disability, or a class of such individuals on the basis of disability,
it must be a legitimate measure or qualification for the specific
job it is being used for. It is not enough that it measures qualifications
for a general class of jobs.
For example: A qualification standard for
a secretarial job of "ability to take shorthand dictation" is
not job-related if the person in the particular secretarial job
actually transcribes taped dictation.
The ADA does not require that a qualification
standard or selection criterion apply only to the "essential functions"
of a job. A "job-related" standard or selection criterion may
evaluate or measure all functions of a job and employers may continue
to select and hire people who can perform all of these functions.
It is only when an individual's disability prevents or impedes
performance of marginal job functions that the ADA requires the
employer to evaluate this individual's qualifications solely on
his/her ability to perform the essential functions of the job,
with or without an accommodation.
For example: An employer has a job opening
for an administrative assistant. The essential functions of the
job are administrative and organizational. Some occasional typing
has been part of the job, but other clerical staff are available
who can perform this marginal job function. There are two job
applicants. One has a disability that makes typing very difficult,
the other has no disability and can type. The employer may not
refuse to hire the first applicant because of her inability to
type, but must base a job decision on the relative ability of
each applicant to perform the essential administrative and organizational
job functions, with or without accommodation. The employer may
not screen out the applicant with a disability because of the
need to make an accommodation to perform the essential job functions.
However, if the first applicant could not type for a reason not
related to her disability (for example, if she had never learned
to type) the employer would be free to select the applicant who
could best perform all of the job functions.
2. Business Necessity
"Business necessity" will be interpreted under
the ADA as it has been interpreted by the courts under Section
504 of the Rehabilitation Act.
Under the ADA, as under the Rehabilitation
Act:
If a test or other selection criterion excludes
an individual with a disability because of the disability and
does not relate to the essential functions of a job, it is not
consistent with business necessity.
This standard is similar to the legal standard
under Title VII of the Civil Rights Act which provides that a
selection procedure which screens out a disproportionate number
of persons of a particular race, sex or national origin "class"
must be justified as a "business necessity." However, under the
ADA the standard may be applied to an individual who is screened
out by a selection procedure because of disability, as well as
to a class of persons. It is not necessary to make statistical
comparisons between a group of people with disabilities and people
who are not disabled to show that a person with a disability is
screened out by a selection standard.
Disabilities vary so much that it is difficult,
if not impossible, to make general determinations about the effect
of various standards, criteria and procedures on "people with
disabilities." Often, there may be little or no statistical data
to measure the impact of a procedure on any "class" of people
with a particular disability compared to people without disabilities.
As with other determinations under the ADA, the exclusionary effect
of a selection procedure usually must be looked at in relation
to a particular individual who has particular limitations caused
by a disability.
Because of these differences, the federal
Uniform Guidelines on Employee Selection Procedures that apply
to selection procedures on the basis of race, sex, and national
origin under Title VII of the Civil Rights Act and other Federal
authorities do not apply under the ADA to selection procedures
affecting people with disabilities.
A standard may be job-related but not justified
by business necessity, because it does not concern an essential
function of a job.
For example: An employer may ask candidates
for a clerical job if they have a driver's license, because it
would be desirable to have a person in the job who could occasionally
run errands or take packages to the post office in an emergency.
This requirement is "job-related," but it relates to an incidental,
not an essential, job function. If it disqualifies a person who
could not obtain a driver's license because of a disability, it
would not be justified as a "business necessity" for purposes
of the ADA.
Further, the ADA requires that even if a qualification
standard or selection criterion is job-related and consistent
with business necessity, it may not be used to exclude an individual
with a disability if this individual could satisfy the legitimate
standard or selection criterion with a reasonable accommodation.
For example: It may be job-related and necessary
for a business to require that a secretary produce letters and
other documents on a word processor. But it would be discriminatory
to reject a person whose disability prevented manual keyboard
operation, but who could meet the qualification standard using
a computer assistive device, if providing this device would not
impose an undue hardship.
4.4 Establishing Job-Related Qualification
Standards
The ADA does not restrict an employer's authority
to establish needed job qualifications, including requirements
related to:
- education;
- skills;
- work experience;
- licenses or certification;
- physical and mental abilities;
- health and safety; or
- other job-related requirements, such as
judgment, ability to work under pressure or interpersonal skills.
Physical and Mental Qualification Standards
An employer may establish physical or mental
qualifications that are necessary to perform specific jobs (for
example, jobs in the transportation and construction industries;
police and fire fighter jobs; security guard jobs) or to protect
health and safety.
However, as with other job qualification standards,
if a physical or mental qualification standard screens out an
individual with a disability or a class of individuals with disabilities,
the employer must be prepared to show that the standard is:
- job-related and
- consistent with business necessity.
Even if a physical or mental qualification
standard is job-related and necessary for a business, if it is
applied to exclude an otherwise qualified individual with a disability,
the employer must consider whether there is a reasonable accommodation
that would enable this person to meet the standard. The employer
does not have to consider such accommodations in establishing
a standard, but only when an otherwise qualified person with a
disability requests an accommodation.
For example: An employer has a forklift
operator job. The essential function of the job is mechanical
operation of the forklift machinery. The job has a physical requirement
of ability to lift a 70 pound weight, because the operator must
be able to remove and replace the 70 pound battery which powers
the forklift. This standard is job-related. However, it would
be a reasonable accommodation to eliminate this standard for an
otherwise qualified forklift operator who could not lift a 70
pound weight because of a disability, if other operators or employees
are available to help this person remove and replace the battery.
Evaluating Physical and Mental Qualification
Standards Under the ADA
Employers generally have two kinds of physical
or mental standards:
1. Standards that may exclude an entire class
of individuals with disabilities.
For example: No person who has epilepsy,
diabetes, or a heart or back condition is eligible for a job.
2. Standards that measure a physical or mental
ability needed to perform a job.
For example: The person in the job must be
able to lift x pounds for x hours daily, or run x miles in x minutes.
Standards that exclude an entire class
of individuals with disabilities
"Blanket" exclusions of this kind usually
have been established because employers believed them to be necessary
for health or safety reasons. Such standards also may be used
to screen out people who an employer fears, or assumes, may cause
higher medical insurance or workers' compensation costs, or may
have a higher rate of absenteeism.
Employers who have such standards should review
them carefully. In most cases, they will not meet ADA requirements.
The ADA recognizes legitimate employer concerns
and the requirements of other laws for health and safety in the
workplace. An employer is not required to hire or retain an individual
who would pose a "direct threat" to health or safety (see below).
But the ADA requires an objective assessment of a particular individual's
current ability to perform a job safely and effectively. Generalized
"blanket" exclusions of an entire group of people with a certain
disability prevent such an individual consideration. Such class-wide
exclusions that do not reflect up-to-date medical knowledge and
technology, or that are based on fears about future medical or
workers' compensation costs, are unlikely to survive a legal challenge
under the ADA. (However, the ADA recognizes employers' obligations
to comply with Federal laws that mandate such exclusions in certain
occupations. [See Health and Safety Requirements of Other Federal
or State Laws below.])
The ADA requires that:
- any determination of a direct threat to
health or safety must be based on an individualized assessment
of objective and specific evidence about a particular individual's
present ability to perform essential job functions, not on general
assumptions or speculations about a disability. (See Standards
Necessary for Health and Safety: A "Direct Threat" below).
For example: An employer who excludes all
persons who have epilepsy from jobs that require use of dangerous
machinery will be required to look at the life experience and
work history of an individual who has epilepsy. The individual
evaluation should take into account the type of job, the degree
of seizure control, the type(s) of seizures (if any), whether
the person has an "aura" (warning of seizure), the person's reliability
in taking prescribed anti-convulsant medication, and any side
effects of such medication. Individuals who have no seizures because
they regularly take prescribed medication, or who have sufficient
advance warning of a seizure so that they can stop hazardous activity,
would not pose a "direct threat" to safety.
Standards that measure needed physical
or mental ability to perform a job
Specific physical or mental abilities may
be needed to perform certain types of jobs.
For example: Candidates for jobs such as airline
pilots, policemen and firefighters may be required to meet certain
physical and psychological qualifications.
In establishing physical or mental standards
for such jobs, an employer does not have to show that these standards
are "job related," justified by "business necessity" or that they
relate only to "essential" functions of the job. However, if such
a standard screens out an otherwise qualified individual with
a disability, the employer must be prepared to show that the standard,
as applied, is job-related and consistent with business necessity
under the ADA. And, even if this can be shown, the employer must
consider whether this individual could meet the standard with
a reasonable accommodation.
For example: A police department that requires
all its officers to be able to make forcible arrests and to perform
all job functions in the department might be able to justify stringent
physical requirements for all officers, if in fact they are all
required to be available for any duty in an emergency.
However, if a position in a mailroom required
as a qualification standard that the person in the job be able
to reach high enough to place and retrieve packages from 6-foot
high shelves, an employer would have to consider whether there
was an accommodation that would enable a person with a disability
that prevented reaching that high to perform these essential functions.
Possible accommodations might include lowering the shelf-height,
providing a step stool or other assistive device.
Physical agility tests
An employer may give a physical agility test
to determine physical qualifications necessary for certain jobs
prior to making a job offer if it is simply an agility test and
not a medical examination. Such a test would not be subject to
the prohibition against pre-employment medical examinations if
given to all similarly situated applicants or employees, regardless
of disability. However, if an agility test screens out or tends
to screen out an individual with a disability or a class of such
individuals because of disability, the employer must be prepared
to show that the test is job-related and consistent with business
necessity and that the test or the job cannot be performed with
a reasonable accommodation.
It is important to understand the distinction
between physical agility tests and prohibited pre-employment medical
inquiries and examinations. One difference is that agility tests
do not involve medical examinations or diagnoses by a physician,
while medical examinations may involve a doctor.
For example: At the pre-offer stage, a police
department may conduct an agility test to measure a candidate's
ability to walk, run, jump, or lift in relation to specific job
duties, but it cannot require the applicant to have a medical
screening before taking the agility test. Nor can it administer
a medical examination before making a conditional job offer to
this person.
Some employers currently may require a medical
screening before administering a physical agility test to assure
that the test will not harm the applicant. There are two ways
that an employer can handle this problem under the ADA:
- the employer can request the applicant's
physician to respond to a very restricted inquiry which describes
the specific agility test and asks: "Can this person safely
perform this test?"
- the employer may administer the physical
agility test after making a conditional job offer, and in this
way may obtain any necessary medical information, as permitted
under the ADA. (See Chapter VI.) The employer may find it more
cost-efficient to administer such tests only to those candidates
who have met other job qualifications.
4.5 Standards Necessary for Health and Safety:
A "Direct Threat"
An employer may require as a qualification
standard that an individual not pose a "direct threat" to the
health or safety of the individual or others, if this standard
is applied to all applicants for a particular job. However, an
employer must meet very specific and stringent requirements under
the ADA to establish that such a "direct threat" exists.
The employer must be prepared to show that
there is:
- significant risk of substantial harm;
- the specific risk must be identified;
- it must be a current risk, not one that
is speculative or remote;
- the assessment of risk must be based on
objective medical or other factual evidence regarding a particular
individual; and
- even if a genuine significant risk of substantial
harm exists, the employer must consider whether the risk can
be eliminated or reduced below the level of a "direct threat"
by reasonable accommodation.
Looking at each of these requirements more
closely:
1. Significant risk of substantial harm
An employer cannot deny an employment opportunity
to an individual with a disability merely because of a slightly
increased risk. The employer must be prepared to show that there
is a significant risk, that is, a high probability of substantial
harm, if the person were employed.
The assessment of risk cannot be based on
mere speculation unrelated to the individual in question.
For example: An employer cannot assume that
a person with cerebral palsy who has restricted manual dexterity
cannot work in a laboratory because s/he will pose a risk of breaking
vessels with dangerous contents. The abilities or limitations
of a particular individual with cerebral palsy must be evaluated.
2. The specific risk must be identified
If an individual has a disability, the employer
must identify the aspect of the disability that would pose a direct
threat, considering the following factors:
- the duration
of the risk.
For example: An elementary school teacher
who has tuberculosis may pose a risk to the health of children
in her classroom. However, with proper medication, this person's
disease would be contagious for only a two-week period. With an
accommodation of two-weeks absence from the classroom, this teacher
would not pose a "direct threat."
- the nature and severity of the potential
harm.
For example: A person with epilepsy, who has
lost consciousness during seizures within the past year, might
seriously endanger her own life and the lives of others if employed
as a bus driver. But this person would not pose a severe threat
of harm if employed in a clerical job.
- the likelihood that the potential harm
will occur.
For example: An employer may believe that
there is a risk of employing an individual with HIV disease as
a teacher. However, it is medically established that this disease
can only be transmitted through sexual contact, use of infected
needles, or other entry into a person's blood stream. There is
little or no likelihood that employing this person as a teacher
would pose a risk of transmitting this disease.
- the imminence of the potential harm.
For example: A physician's evaluation of an
applicant for a heavy labor job that indicated the individual
had a disc condition that might worsen in 8 or 10 years would
not be sufficient indication of imminent potential harm.
If the perceived risk to health or safety
arises from the behavior of an individual with a mental or emotional
disability, the employer must identify the specific behavior that
would pose the "direct threat".
3. The risk must be current, not one that
is speculative or remote
The employer must show that there is a current
risk -- "a high probability of substantial harm" -- to health
or safety based on the individual's present ability to perform
the essential functions of the job. A determination that an individual
would pose a "direct threat" cannot be based on speculation about
future risk. This includes speculation that an individual's disability
may become more severe. An assessment of risk cannot be based
on speculation that the individual will become unable to perform
a job in the future, or that this individual may cause increased
health insurance or workers compensation costs, or will have excessive
absenteeism. (See Insurance, Chapter VII., and Workers' Compensation,
Chapter IX.)
4. The assessment of risk must be based
on objective medical or other evidence related to a particular
individual
The determination that an individual applicant
or employee with a disability poses a "direct threat" to health
or safety must be based on objective, factual evidence related
to that individual's present ability to safely perform the essential
functions of a job. It cannot be based on unfounded assumptions,
fears, or stereotypes about the nature or effect of a disability
or of disability generally. Nor can such a determination be based
on patronizing assumptions that an individual with a disability
may endanger himself or herself by performing a particular job.
For example: An employer may not exclude a
person with a vision impairment from a job that requires a great
deal of reading because of concern that the strain of heavy reading
may further impair her sight.
The determination of a "direct threat" to
health or safety must be based on a reasonable medical judgement
that relies on the most current medical knowledge and/or the best
available objective evidence. This may include:
- input from the individual with a disability;
- the experience of this individual in previous
jobs;
- documentation from medical doctors, psychologists,
rehabilitation counselors, physical or occupational therapists,
or others who have expertise in the disability involved and/or
direct knowledge of the individual with a disability.
Where the psychological behavior of an employee
suggests a threat to safety, factual evidence of this behavior
also may constitute evidence of a "direct threat." An employee's
violent, aggressive, destructive or threatening behavior may provide
such evidence.
Employers should be careful to assure that
assessments of "direct threat" to health or safety are based on
current medical knowledge and other kinds of evidence listed above,
rather than relying on generalized and frequently out-of- date
assumptions about risk associated with certain disabilities. They
should be aware that Federal contractors who have had similar
disability nondiscrimination requirements under the Rehabilitation
Act have had to make substantial backpay and other financial payments
because they excluded individuals with disabilities who were qualified
to perform their jobs, based on generalized assumptions that were
not supported by evidence about the individual concerned.
Examples of Contractor Cases:
- A highly qualified experienced worker was
rejected for a sheet metal job because of a company's general
medical policy excluding anyone with epilepsy from this job.
The company asserted that this person posed a danger to himself
and to others because of the possibility that he might have
a seizure on the job. However, this individual had been seizure-free
for 6 years and co-workers on a previous job testified that
he carefully followed his prescribed medication schedule. The
company was found to have discriminated against this individual
and was required to hire him, incurring large back pay and other
costs.
- An applicant who was deaf in one ear was
rejected for an aircraft mechanic job because the company feared
that his impairment might cause a future workers' compensation
claim. His previous work record gave ample evidence of his ability
to perform the aircraft mechanic job. The company was found
to have discriminated because it provided no evidence that this
person would have been a danger to himself or to others on the
job.
- An experienced
carpenter was not hired because a blood pressure reading by
the company doctor at the end of a physical exam was above the
company's general medical standard. However, his own doctor
provided evidence of much lower readings, based on measurements
of his blood pressure at several times during a physical exam.
This doctor testified that the individual could safely perform
the carpenter's job because he had only mild hypertension. Other
expert medical evidence confirmed that a single blood pressure
reading was not sufficient to determine if a person has hypertension,
that such a reading clearly was not sufficient to determine
if a person could perform a particular job, and that hypertension
has very different effects on different people. In this case,
it was found that there was merely a slightly elevated risk,
and that a remote possibility of future injury was not sufficient
to disqualify an otherwise qualified person. (Note that while
it is possible that a person with mild hypertension does not
have an impairment that "substantially limits a major life activity,"
in this case the person was excluded because he was "regarded
as" having such an impairment. The employer was still required
to show that this person posed a "direct threat" to safety.)
"Direct Threat" to Self
An employer may require that an individual
not pose a direct threat of harm to his or her own safety or health,
as well as to the health or safety of others. However, as emphasized
above, such determinations must be strictly based on valid medical
analyses or other objective evidence related to this individual,
using the factors set out above. A determination that a person
might cause harm to himself or herself cannot be based on stereotypes,
patronizing assumptions about a person with a disability, or generalized
fears about risks that might occur if an individual with a disability
is placed in a certain job. Any such determination must be based
on evidence of specific risk to a particular individual.
For example: An employer would not be required
to hire an individual disabled by narcolepsy who frequently and
unexpectedly loses consciousness to operate a power saw or other
dangerous equipment, if there is no accommodation that would reduce
or eliminate the risk of harm. But an advertising agency could
not reject an applicant for a copywriter job who has a history
of mental illness, based on a generalized fear that working in
this high stress job might trigger a relapse of the individual's
mental illness. Nor could an employer reject an applicant with
a visual or mobility disability because of a generalized fear
of risks to this person in the event of a fire or other emergency.
5. If there is a significant risk, reasonable
accommodation must be considered
Where there is a significant risk of substantial
harm to health or safety, an employer still must consider whether
there is a reasonable accommodation that would eliminate this
risk or reduce the risk so that it is below the level of a "direct
threat."
For example: A deaf bus mechanic was denied
employment because the transit authority feared that he had a
high probability of being injured by buses moving in and out of
the garage. It was not clear that there was, in fact, a "high
probability" of harm in this case, but the mechanic suggested
an effective accommodation that enabled him to perform his job
with little or no risk. He worked in a corner of the garage, facing
outward, so that he could see moving buses. A co-worker was designated
to alert him with a tap on the shoulder if any dangerous situation
should arise.
"Direct Threat" and Accommodation in Food
Handling Jobs
The ADA includes a specific application of
the "direct threat" standard and the obligation for reasonable
accommodation in regard to individuals who have infectious or
communicable diseases that may be transmitted through the handling
of food.
The law provides that the U.S. Department
of Health and Human Services (HHS) must prepare and update annually
a list of contagious diseases that are transmitted through the
handling of food and the methods by which these diseases are transmitted.
When an individual who has one of the listed
diseases applies for work or works in a job involving food handling,
the employer must consider whether there is a reasonable accommodation
that will eliminate the risk of transmitting the disease through
handling of food. If there is such an accommodation, and it would
not impose an undue hardship, the employer must provide the accommodation.
An employer would not be required to hire
a job applicant in such a situation if no reasonable accommodation
is possible. However, an employer would be required to consider
accommodating an employee by reassignment to a position that does
not require handling of food, if such a position is available,
the employee is qualified for it, and it would not pose an undue
hardship.
In August 1991, the Centers for Disease Control
(CDC) of the Public Health Service in HHS issued a list of infectious
and communicable diseases that are transmitted through handling
of food, together with information about how these diseases are
transmitted. The list of diseases is brief. In conformance with
established medical opinion, it does not include AIDS or the HIV
virus. In issuing the list, the CDC emphasized that the greatest
danger of food-transmitted illness comes from contamination of
infected food-producing animals and contamination in food processing,
rather than from handling of food by persons with infectious or
communicable diseases. The CDC also emphasized that proper personal
hygiene and sanitation in food-handling jobs were the most important
measures to prevent transmission of disease.
The CDC list of diseases that are transmitted
through food handling and recommendations for preventing such
transmission appears in Appendix C.
4.6 Health and Safety Requirements of Other
Federal or State Laws
The ADA recognizes employers' obligations
to comply with requirements of other laws that establish health
and safety standards. However, the Act gives greater weight to
Federal than to state or local law.
1. Federal Laws and Regulations
The ADA does not override health and safety
requirements established under other Federal laws. If a standard
is required by another Federal law, an employer must comply with
it and does not have to show that the standard is job related
and consistent with business necessity.
For example: An employee who is being hired
to drive a vehicle in interstate commerce must meet safety requirements
established by the U.S. Department of Transportation. Employers
also must conform to health and safety requirements of the U.S.
Occupational Safety and Health Administration (OSHA).
However, an employer still has the obligation
under the ADA to consider whether there is a reasonable accommodation,
consistent with the standards of other Federal laws, that will
prevent exclusion of qualified individuals with disabilities who
can perform jobs without violating the standards of those laws.
For example: In hiring a person to drive a
vehicle in interstate commerce, an employer must conform to existing
Department of Transportation regulations that exclude any person
with epilepsy, diabetes, and certain other conditions from such
a job.
But, for example, if DOT regulations require
that a truck have 3 grab bars in specified places, and an otherwise
qualified individual with a disability could perform essential
job functions with the assistance of 2 additional grab bars, it
would be a reasonable accommodation to add these bars, unless
this would be an undue hardship.
The Department of Transportation, as directed
by Congress, currently is reviewing several motor vehicle standards
that require "blanket" exclusions of individuals with diabetes,
epilepsy and certain other disabilities.
2. State and Local Laws
The ADA does not override state or local laws
designed to protect public health and safety, except where such
laws conflict with ADA requirements. This means that if there
is a state or local law that would exclude an individual with
a disability for a particular job or profession because of a health
or safety risk, the employer still must assess whether a particular
individual would pose a "direct threat" to health or safety under
the ADA standard. If there is such a "direct threat," the employer
also must consider whether it could be eliminated or reduced below
the level of a "direct threat" by reasonable accommodation. An
employer may not rely on the existence of a state or local law
that conflicts with ADA requirements as a defense to a charge
of discrimination.
For example: A state law that required a school
bus driver to have a high level of hearing in both ears without
use of a hearing aid was found by a court to violate Section 504
of the Rehabilitation Act, and would violate the ADA. The court
found that the driver could perform his job with a hearing aid
without a risk to safety.
(See further guidance on Medical Examinations
and Inquiries in Chapter VI.)
V. NONDISCRIMINATION IN
THE HIRING PROCESS: RECRUITMENT; APPLICATIONS; PRE-EMPLOYMENT
INQUIRIES; TESTING
This chapter discusses nondiscrimination requirements
that apply to recruitment and the job application process, including
pre-employment inquiries. Chapter VI. discusses these requirements
more specifically in relation to medical inquiries and examinations.
5.1 Overview of Legal Obligations
- An employer must provide an equal opportunity
for an individual with a disability to participate in the job
application process and to be considered for a job.
- An employer may not make any pre-employment
inquiries regarding disability, but may ask questions about
the ability to perform specific job functions and may, with
certain limitations, ask an individual with a disability to
describe or demonstrate how s/he would perform these functions.
- An employer may not require pre-employment
medical examinations or medical histories, but may condition
a job offer on the results of a post-offer medical examination,
if all entering employees in the same job category are required
to take this examination.
- Tests for illegal drugs are not medical
examinations under the ADA and may be given at any time.
- A test that screens out or tends to screen
out a person with a disability on the basis of disability must
be job-related and consistent with business necessity.
- Tests must reflect the skills and aptitudes
of an individual rather than impaired sensory, manual, or speaking
skills, unless those are job-related skills the test is designed
to measure.
A careful review of all procedures used in
recruiting and selecting employees is advisable to assure nondiscrimination
in the hiring process. Reasonable accommodation must be provided
as needed, to assure that individuals with disabilities have equal
opportunities to participate in this process.
5.2 Job Advertisements and Notices
It is advisable that job announcements, advertisements,
and other recruitment notices include information on the essential
functions of the job. Specific information about essential functions
will attract applicants, including individuals with disabilities,
who have appropriate qualifications.
Employers may wish to indicate in job advertisements
and notices that they do not discriminate on the basis of disability
or other legally prohibited bases. An employer may wish to include
a statement such as: "We are an Equal Opportunity Employer. We
do not discriminate on the basis of race, religion, color, sex,
age, national origin or disability."
Accessibility of Job Information
Information about job openings should be accessible
to people with different disabilities. An employer is not obligated
to provide written information in various formats in advance,
but should make it available in an accessible format on request.
For example: Job information should be available
in a location that is accessible to people with mobility impairments.
If a job advertisement provides only a telephone number to call
for information, a TDD (telecommunication device for the deaf)
number should be included, unless a telephone relay service has
been established<2>. Printed job information in an employment
office or on employee bulletin boards should be made available,
as needed, to persons with visual or other reading impairments.
Preparing information in large print will help make it available
to some people with visual impairments. Information can be recorded
on a cassette or read to applicants with more severe vision impairments
and those who have other disabilities which limit reading ability.
5.3 Employment Agencies
Employment agencies are "covered entities"
under the ADA, and must comply with all ADA requirements that
are applicable to their activities.
The definition of an "employment agency" under
the ADA is the same as that under Title VII of the Civil Rights
Act. It includes private and public employment agencies and other
organizations, such as college placement services, that regularly
procure employees for an employer.
When an employer uses an employment agency
to recruit, screen, and refer potential employees, both the employer
and the employment agency may be liable if there is any violation
of ADA requirements.
For example: An employer uses an employment
agency to recruit and the agency places a newspaper advertisement
with a telephone number that all interested persons must call,
because no address is given. However, there is no TDD number.
If there is no telephone relay service, and a deaf person is unable
to obtain information about a job for which she is qualified and
files a discrimination charge, both the employer and the agency
may be liable.
An employer should inform an employment agency
used to recruit or screen applicants of the mutual obligation
to comply with ADA requirements. In particular, these agencies
should be informed about requirements regarding qualification
standards, pre-employment inquiries, and reasonable accommodation.
If an employer has a contract with an employment
agency, the employer may wish to include a provision stating that
the agency will conduct its activities in compliance with ADA
and other legal nondiscrimination requirements.
5.4 Recruitment
The ADA is a nondiscrimination law. It does
not require employers to undertake special activities to recruit
people with disabilities. However, it is consistent with the purpose
of the ADA for employers to expand their "outreach" to sources
of qualified candidates with disabilities. (See Locating Qualified
Individuals with Disabilities below).
Recruitment activities that have the effect
of screening out potential applicants with disabilities may violate
the ADA.
For example: If an employer conducts recruitment
activity at a college campus, job fair, or other location that
is physically inaccessible, or does not make its recruitment activity
accessible at such locations to people with visual, hearing or
other disabilities, it may be liable if a charge of discrimination
is filed.
Locating Qualified Individuals with Disabilities
There are many resources for locating individuals
with disabilities who are qualified for different types of jobs.
People with disabilities represent a large, underutilized human
resource pool. Employers who have actively recruited and hired
people with disabilities have found valuable sources of employees
for jobs of every kind.
Many of the organizations listed in the Resource
Directory are excellent sources for recruiting qualified individuals
with disabilities as well as sources of technical assistance for
any accommodations needed. For example, many colleges and universities
have coordinators of services for students with disabilities who
can be helpful in recruitment and in making accommodations. The
Association on Handicapped Student Service Programs in Post Secondary
Education can provide information on these resources. Local Independent
Living Centers, state and local vocational rehabilitation agencies,
organizations such as Goodwill Industries, and many organizations
representing people who have specific disabilities are among other
recruitment sources. (See "Recruitment Sources" in Resource Directory
Index).
5.5 Pre-Employment Inquiries
The ADA Prohibits Any Pre-Employment Inquiries
About a Disability.
This prohibition is necessary to assure that
qualified candidates are not screened out because of their disability
before their actual ability to do a job is evaluated. Such protection
is particularly important for people with hidden disabilities
who frequently are excluded, with no real opportunity to present
their qualifications, because of information requested in application
forms, medical history forms, job interviews, and pre-employment
medical examinations.
The prohibition on pre-employment inquiries
about disability does not prevent an employer from obtaining necessary
information regarding an applicant's qualifications, including
medical information necessary to assess qualifications and assure
health and safety on the job.
The ADA requires only that such inquiries
be made in two separate stages of the hiring process.
1. Before making a job offer.
At this stage, an employer:
- may ask questions about an applicant's
ability to perform specific job functions;
- may not make an inquiry about a disability;
- may make a job offer that is conditioned
on satisfactory results of a post-offer medical examination
or inquiry.
2. After making a conditional job offer
and before an individual starts work
At this stage, an employer may conduct a medical
examination or ask health-related questions, providing that all
candidates who receive a conditional job offer in the same job
category are required to take the same examination and/or respond
to the same inquiries.
Inquiries that may and may not be made at
the pre-offer stage are discussed in the section that follows.
Guidance on obtaining and using information from post-offer medical
and inquiries and examinations is provided in Chapter VI.
5.5(a) Basic Requirements Regarding Pre-Offer
Inquiries
- An employer may not make any pre-employment
inquiry about a disability, or about the nature or severity
of a disability:
- on application forms
- in job interviews
- in background or reference checks.
- An employer may not make any medical inquiry
or conduct any medical examination prior to making a conditional
offer of employment.
- An employer may ask a job applicant questions
about ability to perform specific job functions, tasks, or duties,
as long as these questions are not phrased in terms of a disability.
Questions need not be limited to the "essential" functions of
the job.
- An employer may ask all applicants to describe
or demonstrate how they will perform a job, with or without
an accommodation.
- If an individual has a known disability
that might interfere with or prevent performance of job functions,
s/he may be asked to describe or demonstrate how these functions
will be performed, with or without an accommodation, even if
other applicants are not asked to do so; however,
- If a known disability would not interfere
with performance of job functions, an individual may only be
required to describe or demonstrate how s/he will perform a
job if this is required of all applicants for the position.
- An employer may condition a job offer on
the results of a medical examination or on the responses to
medical inquiries if such an examination or inquiry is required
of all entering employees in the same job category, regardless
of disability; information obtained from such inquiries or examinations
must be handled according to the strict confidentiality requirements
of the ADA. (See Chapter VI.)
5.5(b) The Job Application Form
A review of job application forms should be
a priority before the ADA's effective date, to eliminate any questions
related to disability.
Some Examples of Questions that May Not
be Asked on Application Forms or in Job Interviews:
- Have you ever had or been treated for any
of the following conditions or diseases? (Followed by a checklist
of various conditions and diseases.)
- Please list any conditions or diseases
for which you have been treated in the past 3 years.
- Have you ever been hospitalized? If so,
for what condition?
- Have you ever been treated by a psychiatrist
or psychologist? If so, for what condition?
- Have you ever been treated for any mental
condition?
- Is there any health-related reason you
may not be able to perform the job for which you are applying?
- Have you had a major illness in the last
5 years?
- How many days were you absent from work
because of illness last year?
(Pre-employment questions about illness may
not be asked, because they may reveal the existence of a disability.
However, an employer may provide information on its attendance
requirements and ask if an applicant will be able to meet these
requirements. [See also The Job Interview below.])
- Do you have any physical defects which
preclude you from performing certain kinds of work? If yes,
describe such defects and specific work limitations.
- Do you have any disabilities or impairments
which may affect your performance in the position for which
you are applying?
(This question should not be asked even if
the applicant is requested in a follow-up question to identify
accommodations that would enable job performance. Inquiries should
not focus on an applicant's disabilities. The applicant may be
asked about ability to perform specific job functions, with or
without a reasonable accommodation. [See Information That May
be Asked, below.])
- Are you taking any prescribed drugs?
(Questions about use of prescription drugs
are not permitted before a conditional job offer, because the
answers to such questions might reveal the existence of certain
disabilities which require prescribed medication.)
- Have you ever been treated for drug addiction
or alcoholism?
(Information may not be requested regarding
treatment for drug or alcohol addiction, because the ADA protects
people addicted to drugs who have been successfully rehabilitated,
or who are undergoing rehabilitation, from discrimination based
on drug addiction. [See Chapter VI. for discussion of post-offer
inquiries and Chapter VIII. for drug and alcohol issues.])
- Have you ever filed for workers' compensation
insurance?
(An employer may not ask about an applicant's
workers' compensation history at the pre-offer stage, but may
obtain such information after making a conditional job offer.
Such questions are prohibited because they are likely to reveal
the existence of a disability. In addition, it is discriminatory
under the ADA not to hire an individual with a disability because
of speculation that the individual will cause increased workers'
compensation costs. (See Chapter IV, 4.5(3), and Chapter
IX.)
Information about an applicant's ability to
perform job tasks, with or without accommodation, can be obtained
through the application form and job interview, as explained below.
Other needed information may be obtained through medical inquiries
or examinations conducted after a conditional offer of employment,
as described in Chapter VI.
5.5(c) Exception for Federal Contractors
Covered by Section 503 of the Rehabilitation Act and Other Federal
Programs Requiring Identification of Disability.
Federal contractors and subcontractors who
are covered by the affirmative action requirements of Section
503 of the Rehabilitation Act may invite individuals with disabilities
to identify themselves on a job application form or by other pre-employment
inquiry, to satisfy the affirmative action requirements of Section
503 of the Rehabilitation Act. Employers who request such information
must observe Section 503 requirements regarding the manner in
which such information is requested and used, and the procedures
for maintaining such information as a separate, confidential record,
apart from regular personnel records. (For further information,
see Office of Federal Contract Compliance Programs listing in
Resource Directory.)
A pre-employment inquiry about a disability
also is permissible if it is required or necessitated by another
Federal law or regulation. For example, a number of programs administered
or funded by the U.S. Department of Labor target benefits to individuals
with disabilities, such as, disabled veterans, veterans of the
Vietnam era, individuals eligible for Targeted Job Tax Credits,
and individuals eligible for Job Training Partnership Act assistance.
Pre-employment inquiries about disabilities may be necessary under
these laws to identify disabled applicants or clients in order
to provide the required special services for such persons. These
inquiries would not violate the ADA.
5.5(d) Information that May Be Requested
on Application Forms or in Interviews.
An employer may ask questions to determine
whether an applicant can perform specific job functions. The questions
should focus on the applicant's ability to perform the job, not
on a disability.
For example: An employer could attach a job
description to the application form with information about specific
job functions. Or the employer may describe the functions. This
will make it possible to ask whether the applicant can perform
these functions. It also will give an applicant with a disability
needed information to request any accommodation required to perform
a task. The applicant could be asked:
- Are you able to perform these tasks
with or without an accommodation?
If the applicant indicates that s/he can perform
the tasks with an accommodation, s/he may be asked:
- How would you perform the tasks, and
with what accommodation(s)?
However, the employer must keep in mind that
it cannot refuse to hire a qualified individual with a disability
because of this person's need for an accommodation that would
be required by the ADA.
An employer may inform applicants on an application
form that they may request any needed accommodation to participate
in the application process.
For example: accommodation for a test, a job
interview, or a job demonstration.
The employer may wish to provide information
on the application form and in the employment office about specific
aspects of the job application process, so that applicants may
request any needed accommodation. The employer is not required
to provide such information, but without it the applicant may
have no advance notice of the need to request an accommodation.
Since the individual with a disability has the responsibility
to request an accommodation and the employer has the responsibility
to provide the accommodation (unless it would cause an undue hardship),
providing advance information on various application procedures
may help avoid last minute problems in making necessary accommodations.
This information can be communicated orally or on tape for people
who are visually impaired. (See also Testing, 5.6 below)
5.5(e) Making Job Applications Accessible
Employers have an obligation to make reasonable
accommodations to enable an applicant with a disability to apply
for a job. Some of the kinds of accommodations that may be needed
have been suggested in the section on Accessibility of Job Information,
5.2 above. Individuals with visual or learning disabilities
or other mental disabilities also may require assistance in filling
out application forms.
5.5(f) The Job Interview
The basic requirements regarding pre-employment
inquiries and the types of questions that are prohibited on job
application forms apply to the job interview as well. (See 5.5(a)
and (b) above.) An interviewer may not ask questions about a disability,
but may obtain more specific information about the ability to
perform job tasks and about any needed accommodation, as set out
below.
To assure that an interview is conducted in
a nondiscriminatory manner, interviewers should be well-informed
about the ADA's requirements. The employer may wish to provide
written guidelines to people who conduct job interviews.
Most employment discrimination against people
with disabilities is not intentional. Discrimination most frequently
occurs because interviewers and others involved in hiring lack
knowledge about the differing capabilities of individuals with
disabilities and make decisions based on stereotypes, misconceptions,
or unfounded fears. To avoid discrimination in the hiring process,
employers may wish to provide "awareness" training for interviewers
and others involved in the hiring process. Such training provides
factual information about disability and the qualifications of
people with disabilities, emphasizes the importance of individualized
assessments, and helps interviewers feel more at ease in talking
with people who have different disabilities.
Sources that provide "awareness training,"
some at little or no cost, may be found under this heading in
the Resource Directory Index.
The job interview should focus on the ability
of an applicant to perform the job, not on disability.
For example: If a person has only one arm
and an essential function of a job is to drive a car, the interviewer
should not ask if or how the disability would affect this person's
driving. The person may be asked if s/he has a valid driver's
license, and whether s/he can perform any special aspect of driving
that is required, such as frequent long-distance trips, with or
without an accommodation.
The interviewer also could obtain needed information
about an applicant's ability and experience in relation to specific
job requirements through statements and questions such as: "Eighty-percent
of the time of this sales job must be spent on the road covering
a three-state territory. What is your outside selling experience?
Do you have a valid driver's license? What is your accident record?"
Where an applicant has a visible disability
(for example, uses a wheelchair or a guide dog, or has a missing
limb) or has volunteered information about a disability, the interviewer
may not ask questions about:
- the nature of the disability;
- the severity of the disability;
- the condition causing the disability;
- any prognosis or expectation regarding
the condition or disability; or
- whether the individual will need treatment
or special leave because of the disability.
The interviewer may describe or demonstrate
the specific functions and tasks of the job and ask whether an
applicant can perform these functions with or without a reasonable
accommodation.
For example: An interviewer could say: "The
person in this mailroom clerk position is responsible for receiving
incoming mail and packages, sorting the mail, and taking it in
a cart to many offices in two buildings, one block apart. The
mail clerk also must receive incoming boxes of supplies up to
50 pounds in weight, and place them on storage shelves up to 6
feet in height. Can you perform these tasks? Can you perform them
with or without a reasonable accommodation?"
As suggested above, (see 5.5(d)), the interviewer
also may give the applicant a copy of a detailed position description
and ask whether s/he can perform the functions described in the
position, with or without a reasonable accommodation.
Questions may be asked regarding ability to
perform all job functions, not merely those that are essential
to the job.
For example: A secretarial job may involve
the following functions:
- transcribing dictation and written drafts
from the supervisor and other staff into final written documents;
- proof-reading documents for accuracy;
- developing and maintaining files;
- scheduling and making arrangements for
meetings and conferences;
- logging documents and correspondence in
and out;
- placing, answering, and referring telephone
calls;
- distributing documents to appropriate staff
members;
- reproducing documents on copying machines;
and
- occasional travel to perform clerical tasks
at out of town conferences.
Taking into account the specific activities
of the particular office in which this secretary will work, and
availability of other staff, the employer has identified functions
1-6 as essential, and functions 7-9 as marginal to this secretary's
job. The interviewer may ask questions related to all 9 functions;
however, an applicant with limited mobility should not be screened
out because of inability to perform the last 3 functions due to
her disability. S/he should be evaluated on ability to perform
the first 6 functions, with or without accommodation.
Inquiries Related to Ability to Perform
Job Functions and Accommodations
An interviewer may obtain information about
an applicant's ability to perform essential job functions and
about any need for accommodation in several ways, depending on
the particular job applicant and the requirements of a particular
job:
- The applicant may be asked to describe
or demonstrate how s/he will perform specific job functions,
if this is required of everyone applying for a job in this job
category, regardless of disability.
For example: An employer might require all
applicants for a telemarketing job to demonstrate selling ability
by taking a simulated telephone sales test, but could not require
that a person using a wheelchair take this test if other applicants
are not required to take it.
- If an applicant has a known disability
that would appear to interfere with or prevent performance of
a job-related function, s/he may be asked to describe or demonstrate
how this function would be performed, even if other applicants
do not have to do so.
For example: If an applicant has one arm and
the job requires placing bulky items on shelves up to six feet
high, the interviewer could ask the applicant to demonstrate how
s/he would perform this function, with or without an accommodation.
If the applicant states that s/he can perform this function with
a reasonable accommodation, for example, with a step stool fitted
with a device to assist lifting, the employer either must provide
this accommodation so that the applicant can show that s/he can
shelve the items, or let the applicant describe how s/he would
do this task.
- However, if an applicant has a known disability
that would not interfere with or prevent performance
of a job related function, the employer can only ask the applicant
to demonstrate how s/he would perform the function if all applicants
in the job category are required to do so, regardless of disability.
For example: If an applicant with one leg
applies for a job that involves sorting small parts while seated,
s/he may not be required to demonstrate the ability to do this
job unless all applicants are required to do so.
If an applicant indicates that s/he cannot
perform an essential job function even with an accommodation,
the applicant would not be qualified for the job in question.
Inquiries About Attendance
An interviewer may not ask whether an applicant
will need or request leave for medical treatment or for other
reasons related to a disability.
The interviewer may provide information on
the employer's regular work hours, leave policies, and any special
attendance needs of the job, and ask if the applicant can meet
these requirements (provided that the requirements actually are
applied to employees in a particular job).
For example: "Our regular work hours are 9
to 5, five days weekly, but we expect employees in this job to
work overtime, evenings, and weekends for 6 weeks during the Christmas
season and on certain other holidays. New employees get 1 week
of vacation, 7 sick leave days and may take no more than 5 days
of unpaid leave per year. Can you meet these requirements?"
Information about previous work attendance
records may be obtained on the application form, in the interview
or in reference checks, but the questions should not refer to
illness or disability.
If an applicant has had a poor attendance
record on a previous job, s/he may wish to provide an explanation
that includes information related to a disability, but the employer
should not ask whether a poor attendance record was due to illness,
accident or disability. For example, an applicant might wish to
disclose voluntarily that the previous absence record was due
to surgery for a medical condition that is now corrected, treatment
for cancer that is now in remission or to adjust medication for
epilepsy, but that s/he is now fully able to meet all job requirements.
Accommodations for Interviews
The employer must provide an accommodation,
if needed, to enable an applicant to have equal opportunity in
the interview process. As suggested earlier, the employer may
find it helpful to state in an initial job notice, and/or on the
job application form, that applicants who need accommodation for
an interview should request this in advance.
Needed accommodations for interviews may include:
- an accessible location for people with
mobility impairments;
- a sign interpreter for a deaf person;
- a reader for a blind person.
Conducting an Interview
The purpose of a job interview is to obtain
appropriate information about the background qualifications and
other personal qualities of an applicant in relation to the requirements
of a specific job.
This chapter has discussed ways to obtain
this information by focusing on the abilities rather than the
disability of a disabled applicant. However, there are other aspects
of an interview that may create barriers to an accurate and objective
assessment of an applicant's job qualifications. The interviewer
may not know how to communicate effectively with people who have
particular disabilities, or may make negative, incorrect assumptions
about the abilities of a person with a disability because s/he
misinterprets some external manifestation of the disability.
For example: An interviewer may assume that
a person who displays certain characteristics of cerebral palsy,
such as indistinct speech, lisping, and involuntary or halting
movements, is limited in intelligence. In fact, cerebral palsy
does not affect intelligence at all.
If an applicant who is known to have a disability
was referred by a rehabilitation agency or other source familiar
with the person, it may be helpful to contact the agency to learn
more about this individual's ability to perform specific job functions;
however, questions should not be asked about the nature or extent
of the person's disability. General information on different disabilities
may be obtained from many organizations listed in the Resource
Directory. See Index under the specific disability.
5.5(g) Background and Reference Checks
Before making a conditional job offer, an
employer may not request any information about a job applicant
from a previous employer, family member, or other source that
it may not itself request of the job applicant.
If an employer uses an outside firm to conduct
background checks, the employer should assure that this firm complies
with the ADA's prohibitions on pre-employment inquiries. Such
a firm is an agent of the employer. The employer is responsible
for actions of its agents and may not do anything through a contractual
relationship that it may not itself do directly.
Before making a conditional offer of employment,
an employer may not ask previous employers or other sources about
an applicant's:
- disability;
- illness;
- workers' compensation history;
- or any other questions that the employer
itself may not ask of the applicant.
A previous employer may be asked about:
- job functions and tasks performed by the
applicant;
- the quality and quantity of work performed;
- how job functions were performed;
- attendance record;
- other job-related issues that do not relate
to disability.
If an applicant has a known disability and
has indicated that s/he could perform a job with a reasonable
accommodation, a previous employer may be asked about accommodations
made by that employer.
5.6 Testing
Employers may use any kind of test to determine
job qualifications. The ADA has two major requirements in relation
to tests:
1. If a test screens out or tends to screen
out an individual with a disability or a class of such individuals
on the basis of disability, it must be job-related and consistent
with business necessity.
· This requirement applies to
all kinds of tests, including, but not limited to: aptitude tests,
tests of knowledge and skill, intelligence tests, agility tests,
and job demonstrations.
A test will most likely be an accurate predictor
of the job performance of a person with a disability when it most
directly or closely measures actual skills and ability needed
to do a job. For example: a typing test, a sales demonstration
test, or other job performance test would indicate what the individual
actually could do in performing a job, whereas a test that measured
general qualities believed to be desirable in a job may screen
out people on the basis of disability who could do the job. For
example, a standardized test used for a job as a heavy equipment
operator might screen out a person with dyslexia or other learning
disability who was able to perform all functions of the job itself.
An employer is only required to show that
a test is job-related and consistent with business necessity if
it screens out a person with a disability because of the disability.
If a person was screened out for a reason unrelated to disability,
ADA requirements do not apply.
For example: If
a person with paraplegia who uses a wheelchair is screened out
because s/he does not have sufficient speed or accuracy on a typing
test, this person probably was not screened out because of his
or her disability. The employer has no obligation to consider
this person for a job which requires fast, accurate typing.
Even if a test is job-related and justified
by business necessity, the employer has an obligation to provide
a specific reasonable accommodation, if needed. For example, upon
request, test sites must be accessible to people who have mobility
disabilities. The ADA also has a very specific requirement for
accommodation in testing, described below.
2. Accommodation in testing
The ADA requires that tests be given to people
who have impaired sensory, speaking or manual skills in a format
and manner that does not require use of the impaired skill, unless
the test is designed to measure that skill. (Sensory skills include
the abilities to hear, see and to process information.)
The purpose of this requirement is to assure
that tests accurately reflect a person's job skills, aptitudes,
or whatever else the test is supposed to measure, rather than
the person's impaired skills. This requirement applies the reasonable
accommodation obligation to testing. It protects people with disabilities
from being excluded from jobs that they actually can do because
a disability prevents them from taking a test or negatively influences
a test result. However, an employer does not have to provide an
alternative test format for a person with an impaired skill if
the purpose of the test is to measure that skill.
For example:
- A person with dyslexia should be given
an opportunity to take a written test orally, if the dyslexia
seriously impairs the individual's ability to read. But if ability
to read is a job-related function that the test is designed
to measure, the employer could require that a person with dyslexia
take the written test. However, even in this situation, reasonable
accommodation should be considered. The person with dyslexia
might be accommodated with a reader, unless the ability to read
unaided is an essential job function, unless such an accommodation
would not be possible on the job for which s/he is being tested,
or would be an undue hardship. For example, the ability to read
without help would be essential for a proofreader's job. Or,
a dyslexic firefighter applicant might be disqualified if he
could not quickly read necessary instructions for dealing with
specific toxic substances at the site of a fire when no reader
would be available.
- Providing extra time to take a test may
be a reasonable accommodation for people with certain disabilities,
such as visual impairments, learning disabilities, or mental
retardation. On the other hand, an employer could require that
an applicant complete a test within an established time frame
if speed is one of the skills that the test is designed to measure.
However, the results of a timed test should not be used to exclude
a person with a disability, unless the test measures a particular
speed necessary to perform an essential function of the job,
and there is no reasonable accommodation that would enable this
person to perform that function within prescribed time frames,
or the accommodation would cause an undue hardship.
Generally, an employer is only required to
provide such an accommodation if it knows, before administering
a test, that an accommodation will be needed. Usually, it is the
responsibility of the individual with a disability to request
any required accommodation for a test. It has been suggested that
the employer inform applicants, in advance, of any tests that
will be administered as part of the application process so that
they may request an accommodation, if needed. (See 5.5(d) above.)
The employer may require that an individual with a disability
request an accommodation within a specific time period before
administration of the test. The employer also may require that
documentation of the need for accommodation accompany such a request.
Occasionally, however, an individual with
a disability may not realize in advance that s/he will need an
accommodation to take a particular test.
For example: A person with a visual impairment
who knows that there will be a written test may not request an
accommodation because she has her own specially designed lens
that usually is effective for reading printed material. However,
when the test is distributed, she finds that her lens is not sufficient,
because of unusually low color contrast between the paper and
the ink. Under these circumstances, she might request an accommodation
and the employer would be obligated to provide one. The employer
might provide the test in a higher contrast format at that time,
reschedule the test, or make any other effective accommodation
that would not impose an undue hardship.
An employer is not required to offer an applicant
the specific accommodation requested. This request should be given
primary consideration, but the employer is only obligated to provide
an effective accommodation. (See Chapter III.) The employer is
only required to provide, upon request, an "accessible" test format
for individuals whose disabilities impair sensory, manual, or
speaking skills needed to take the test, unless the test is designed
to measure these skills.
Some Examples of Alternative Test Formats
and Accommodations:
- Substituting a written test for an oral
test (or written instructions for oral instructions) for people
with impaired speaking or hearing skills;
- Administering a test in large print, in
Braille, by a reader, or on a computer for people with visual
or other reading disabilities;
- Allowing people with visual or learning
disabilities or who have limited use of their hands to record
test answers by tape recorder, dictation or computer;
- Providing extra time to complete a test
for people with certain learning disabilities or impaired writing
skills;
- Simplifying test language for people who
have limited language skills because of a disability;
- Scheduling rest breaks for people with
mental and other disabilities that require such relief;
- Assuring that a test site is accessible
to a person with a mobility disability;
- Allowing a person with a mental disability
who cannot perform well if there are distractions to take a
test in a separate room, if a group test setting is not relevant
to the job itself;
- Where it is not possible to test an individual
with a disability in an alternative format, an employer may
be required, as a reasonable accommodation, to evaluate the
skill or ability being tested through some other means, such
as an interview, education, work experience, licenses or certification,
or a job demonstration for a trial period.
There are a number of technical assistance
resources for effective alternative methods of testing people
with different disabilities. (See "Alternative Testing Formats"
in Resource Directory Index).
VI. MEDICAL EXAMINATIONS
AND INQUIRIES
6.1 Overview of Legal Obligations
Pre-Employment, Pre-Offer
- An employer may not require a job applicant
to take a medical examination, to respond to medical inquiries
or to provide information about workers' compensation claims
before the employer makes a job offer.
Pre-Employment, Post-Offer
- An employer may condition a job offer on
the satisfactory result of a post-offer medical examination
or medical inquiry if this is required of all entering employees
in the same job category. A post-offer examination or inquiry
does not have to be "job-related" and "consistent with business
necessity." Questions also may be asked about previous injuries
and workers' compensation claims.
- If an individual is not hired because a
post-offer medical examination or inquiry reveals a disability,
the reason(s) for not hiring must be job-related and necessary
for the business. The employer also must show that no reasonable
accommodation was available that would enable this individual
to perform the essential job functions, or that accommodation
would impose an undue hardship.
- A post-offer medical examination may disqualify
an individual who would pose a "direct threat" to health or
safety. Such a disqualification is job-related and consistent
with business necessity.
- A post-offer medical examination may not
disqualify an individual with a disability who is currently
able to perform essential job functions because of speculation
that the disability may cause a risk of future injury.
Employee Medical Examinations and Inquiries
- After a person starts work, a medical
examination or inquiry of an employee must be job related and
necessary for the business.
- Employers may conduct employee medical
examinations where there is evidence of a job performance or
safety problem, examinations required by other Federal laws,
examinations to determine current "fitness" to perform a particular
job and voluntary examinations that are part of employee health
programs.
Confidentiality
· Information from all medical examinations
and inquiries must be kept apart from general personnel files
as a separate, confidential medical record, available only under
limited conditions specified in the ADA. (See 6.5 below.)
Drug Testing
- Tests for illegal use of drugs are not
medical examinations under the ADA and are not subject to the
restrictions on such examinations. (See Chapter VIII.)
6.2 Basic Requirements
The ADA does not prevent employers from obtaining
medical and related information necessary to evaluate the ability
of applicants and employees to perform essential job functions,
or to promote health and safety on the job. However, to protect
individuals with disabilities from actions based on such information
that are not job-related and consistent with business necessity,
including protection of health and safety, the ADA imposes specific
and differing obligations on the employer at three stages of the
employment process:
1. Before making
a job offer, an employer may not make any medical inquiry
or conduct any medical examination.
2. After making
a conditional job offer, before a person starts work, an
employer may make unrestricted medical inquiries, but may not
refuse to hire an individual with a disability based on results
of such inquiries, unless the reason for rejection is job-related
and justified by business necessity.
3. After employment,
any medical examination or inquiry required of an employee must
be job-related and justified by business necessity. Exceptions
are voluntary examinations conducted as part of employee health
programs and examinations required by other federal laws.
Under the ADA, "medical" documentation concerning
the qualifications of an individual with a disability, or whether
this individual constitutes a "direct threat" to health and safety,
does not mean only information from medical doctors. It may be
necessary to obtain information from other sources, such as rehabilitation
experts, occupational or physical therapists, psychologists, and
others knowledgeable about the individual and the disability concerned.
It also may be more relevant to look at the individual's previous
work history in making such determinations than to rely on an
examination or tests by a physician.
The basic requirements regarding actions based
on medical information and inquiries have been set out in Chapter
IV. As emphasized there, such actions taken because of a disability
must be job-related and consistent with business necessity. When
an individual is rejected as a "direct threat" to health and safety:
- the employer must be prepared to show a
significant current risk of substantial harm (not a speculative
or remote risk);
- the specific risk must be identified;
- the risk must be documented by objective
medical or other factual evidence regarding the particular individual;
- even if a genuine significant risk of substantial
harm exists, the employer must consider whether it can be eliminated
or reduced below the level of a "direct threat" by reasonable
accommodation.
This chapter discusses in more detail the
content and manner of medical examinations and inquiries that
may be made, and the documentation that may be required (1) before
employment and (2) after employment.
6.3 Examinations and Inquiries Before Employment
No Pre-Offer Medical Examination or Inquiry
The ADA prohibits medical inquiries or medical
examinations before making a conditional job offer to an applicant.
This prohibition is necessary because the results of such inquiries
and examinations frequently are used to exclude people with disabilities
from jobs they are able to perform.
Some employers have medical policies or rely
on doctors' medical assessments that overestimate the impact of
a particular condition on a particular individual, and/or underestimate
the ability of an individual to cope with his or her condition.
Medical policies that focus on disability, rather than the ability
of a particular person, frequently will be discriminatory under
the ADA.
For example: A policy
that prohibits employment of any individual who has epilepsy,
diabetes or a heart condition from a certain type of job, and
which does not consider the ability of a particular individual,
in most cases would violate the ADA. (See Chapter IV.)
Many employers currently use a pre-employment
medical questionnaire, a medical history, or a pre-employment
medical examination as one step in a several-step selection process.
Where this is so, an individual who has a "hidden" disability
such as diabetes, epilepsy, heart disease, cancer, or mental illness,
and who is rejected for a job, frequently does not know whether
the reason for rejection was information revealed by the medical
exam or inquiry (which may not have any relation to this person's
ability to do the job), or whether the rejection was based on
some other aspect of the selection process.
A history of such rejections has discouraged
many people with disabilities from applying for jobs, because
of fear that they will automatically be rejected when their disability
is revealed by a medical examination. The ADA is designed to remove
this barrier to employment.
6.4 Post-Offer Examinations and Inquiries
Permitted
The ADA recognizes that employers may need
to conduct medical examinations to determine if an applicant can
perform certain jobs effectively and safely. The ADA requires
only that such examinations be conducted as a separate, second
step of the selection process, after an individual has met all
other job pre-requisites. The employer may make a job offer to
such an individual, conditioned on the satisfactory outcome of
a medical examination or inquiry, providing that the employer
requires such examination or inquiry for all entering employees
in a particular job category, not merely individuals with known
disabilities, or those whom the employer believes may have a disability.
A post-offer medical examination does not
have to be given to all entering employees in all jobs, only to
those in the same job category.
For example: An examination might be given
to all entering employees in physical labor jobs, but not to employees
entering clerical jobs.
The ADA does not require an employer to justify
its requirement of a post-offer medical examination. An employer
may wish to conduct a post-offer medical exam or make post-offer
medical inquiries for purposes such as:
To determine if an individual currently has
the physical or mental qualifications necessary to perform certain
jobs:
For example: If a job requires continuous
heavy physical exertion, a medical examination may be useful to
determine whether an applicant's physical condition will permit
him/her to perform the job.
To determine that a person can perform a job
without posing a "direct threat" to the health or safety of self
or others.
For example:
- A medical examination and evaluation might
be required to ensure that prospective construction crane operators
do not have disabilities such as uncontrolled seizures that
would pose a significant risk to other workers.
- Workers in certain health care jobs may
need to be examined to assure that they do not have a current
contagious disease or infection that would pose a significant
risk of transmission to others, and that could not be accommodated
(for example, by giving the individual a delayed starting date
until the period of contagion is over).
Compliance with medical requirements of
other Federal laws
Employers may comply with medical and safety
requirements established under other Federal laws without violating
the ADA.
For example: Federal Highway Administration
regulations require medical examinations and evaluations of interstate
truck drivers, and the Federal Aviation Administration requires
examinations for pilots and air controllers.
However, an employer still has an obligation
to consider whether there is a reasonable accommodation, consistent
with the requirements of other Federal laws, that would not exclude
individuals who can perform jobs safely.
Employers also may conduct post-offer medical
examinations that are required by state laws, but, as explained
in Chapter IV, may not take actions based on such examinations
if the state law is inconsistent with ADA requirements. (See Health
and Safety Requirements of Other Federal or State Laws, 4.6.)
Information That May Be Requested in Post-Offer
Examinations or Inquiries
After making a conditional job offer, an employer
may make inquiries or conduct examinations to get any information
that it believes to be relevant to a person's ability to perform
a job. For example, the employer may require a full physical examination.
An employer may ask questions that are prohibited as pre-employment
inquiries about previous illnesses, diseases or medications. (See
Chapter V.)
If a post-offer medical examination is given,
it must be administered to all persons entering a job category.
If a response to an initial medical inquiry (such as a medical
history questionnaire) reveals that an applicant has had a previous
injury, illness, or medical condition, the employer cannot require
the applicant to undergo a medical examination unless all applicants
in the job category are required to have such examination. However,
the ADA does not require that the scope of medical examinations
must be identical. An employer may give follow-up tests or examinations
where an examination indicates that further information is needed.
For example: All potential employees in a
job category must be given a blood test, but if a person's initial
test indicates a problem that may affect job performance, further
tests may be given to that person only, in order to get necessary
information.
A post-offer medical examination or inquiry,
made before an individual starts work, need not focus on ability
to perform job functions. Such inquiries and examinations themselves,
unlike examinations/inquiries of employees, do not have to be
"job related" and "consistent with business necessity." However,
if a conditional job offer is withdrawn because of the results
of such examination or inquiry, an employer must be able to show
that:
- the reasons for the exclusion are job-related
and consistent with business necessity, or the person is being
excluded to avoid a "direct threat" to health or safety; and
that
- no reasonable accommodation was available
that would enable this person to perform the essential job functions
without a significant risk to health or safety, or that such
an accommodation would cause undue hardship.
Some examples of post-offer decisions that
might be job-related and justified by business necessity, and/or
where no reasonable accommodation was possible:
- a medical history reveals that the individual
has suffered serious multiple re-injuries to his back doing
similar work, which have progressively worsened the back condition.
Employing this person in this job would incur significant risk
that he would further re-injure himself.
- a workers' compensation history indicates
multiple claims in recent years which have been denied. An employer
might have a legitimate business reason to believe that the
person has submitted fraudulent claims. Withdrawing a job offer
for this reason would not violate the ADA, because the decision
is not based on disability.
- a medical examination reveals an impairment
that would require the individual's frequent lengthy absence
from work for medical treatment, and the job requires daily
availability for the next 3 months. In this situation, the individual
is not available to perform the essential functions of the job,
and no accommodation is possible.
Examples of discriminatory use of examination
results that are not job related and justified by business necessity:
- A landscape firm sent an applicant for
a laborer's job (who had been doing this kind of work for 20
years) for a physical exam. An x-ray showed that he had a curvature
of the spine. The doctor advised the firm not to hire him because
there was a risk that he might injure his back at some time
in the future. The doctor provided no specific medical documentation
that this would happen or was likely to happen. The company
provided no description of the job to the doctor. The job actually
involved riding a mechanical mower. This unlawful exclusion
was based on speculation about future risk of injury, and was
not job-related.
- An individual is rejected from a job because
he cannot lift more than 50 pounds. The job requires lifting
such a weight only occasionally. The employer has not considered
possible accommodations, such as sharing the occasional heavy
weight lifting with another employee or providing a device to
assist lifting.
Risk Cannot be Speculative or Remote
The results of a medical examination may not
disqualify persons currently able to perform essential
job functions because of unsubstantiated speculation about
future risk.
The results of a medical inquiry or examination
may not be used to disqualify persons who are currently able to
perform the essential functions of a job, either with or without
an accommodation, because of fear or speculation that a
disability may indicate a greater risk of future injury, or absenteeism,
or may cause future workers' compensation or insurance costs.
An employer may use such information to exclude an individual
with a disability where there is specific medical documentation,
reflecting current medical knowledge, that this individual would
pose a significant, current risk of substantial harm to health
or safety. (See Standards for Health and Safety: "Direct Threat"
Chapter IV.)
For example:
- An individual who has an abnormal back
X-ray may not be disqualified from a job that requires heavy
lifting because of fear that she will be more likely to injure
her back or cause higher workers' compensation or health insurance
costs. However, where there is documentation that this individual
has injured and re-injured her back in similar jobs, and the
back condition has been aggravated further by injury, and if
there is no reasonable accommodation that would eliminate the
risk of reinjury or reduce it to an acceptable level, an employer
would be justified in rejecting her for this position.
- If a medical examination reveals that an
individual has epilepsy and is seizure-free or has adequate
warning of a seizure, it would be unlawful to disqualify this
person from a job operating a machine because of fear or speculation
that he might pose a risk to himself or others. But if the examination
and other medical inquiries reveal that an individual with epilepsy
has seizures resulting in loss of consciousness, there could
be evidence of significant risk in employing this person as
a machine operator. However, even where the person might endanger
himself by operating a machine, an accommodation, such as placing
a shield over the machine to protect him, should be considered.
The Doctor's Role
A doctor who conducts medical examinations
for an employer should not be responsible for making employment
decisions or deciding whether or not it is possible to make a
reasonable accommodation for a person with a disability. That
responsibility lies with the employer.
The doctor's role should be limited to advising
the employer about an individual's functional abilities and limitations
in relation to job functions, and about whether the individual
meets the employer's health and safety requirements.
Accordingly, employers should provide doctors
who conduct such examinations with specific information about
the job, including the type of information indicated in the discussions
of "job descriptions" and "job analysis" in Chapter II. (See 2.3.)
Often, particularly when an employer uses
an outside doctor who is not familiar with actual demands of the
job, a doctor may make incorrect assumptions about the nature
of the job functions and specific tasks, or about the ability
of an individual with a disability to perform these tasks with
a reasonable accommodation. It may be useful for the doctor to
visit the job site to see how the job is done.
The employer should inform the doctor that
any recommendations or conclusions related to hiring or placement
of an individual should focus on only two concerns:
1. Whether this person currently is able
to perform this specific job, with or without an accommodation.
This evaluation should look at the individual's
specific abilities and limitations in regard to specific job demands.
For example: The evaluation may indicate that
a person can lift up to 30 pounds and can reach only 2 feet above
the shoulder; the job as usually performed (without accommodation)
requires lifting 50 pound crates to shelves that are 6 feet high.
2. Whether this person can perform this
job without posing a "direct threat" to the health or safety of
the person or others.
The doctor should be informed that the employer
must be able to show that an exclusion of an individual with a
disability because of a risk to health or safety meets the "direct
threat" standard of the ADA, based on "the most current medical
knowledge and/or the best available objective evidence about this
individual." (See Chapter IV., Standards Necessary for Health
and Safety, and 6.2 above.)
For example: If a post-offer medical questionnaire
indicates that a person has a history of repetitive motion injuries
but has had successful surgery with no further problems indicated,
and a doctor recommends that the employer reject this candidate
because this medical history indicates that she would pose a higher
risk of future injury, the employer would violate the ADA if it
acted on the doctor's recommendation based only on the history
of injuries. In this case, the doctor would not have considered
this person's actual current condition as a result of surgery.
A doctor's evaluation of any future risk must
be supported by valid medical analyses indicating a high probability
of substantial harm if this individual performed the particular
functions of the particular job in question. Conclusions of general
medical studies about work restrictions for people with certain
disabilities will not be sufficient evidence, because they do
not relate to a particular individual and do not consider reasonable
accommodation.
The employer should not rely only on a doctor's
opinion, but on the best available objective evidence. This
may include the experience of the individual with a disability
in previous similar jobs, occupations, or non-work activities,
the opinions of other doctors with expertise on the particular
disability, and the advice of rehabilitation counselors, occupational
or physical therapists, and others with direct knowledge of the
disability and/or the individual concerned. Organizations such
as Independent Living Centers, public and private rehabilitation
agencies, and organizations serving people with specific disabilities
such as the Epilepsy Foundation, United Cerebral Palsy Associations,
National Head Injury Foundation, and many others can provide such
assistance. (See Resource Directory.)
Where the doctor's report indicates that an
individual has a disability that may prevent performance of essential
job functions, or that may pose a "direct threat" to health or
safety, the employer also may seek his/her advice on possible
accommodations that would overcome these disqualifications.
6.5 Confidentiality and Limitations on Use
of Medical Information
Although the ADA does not limit the nature
or extent of post-offer medical examinations and inquiries, it
imposes very strict limitations on the use of information obtained
from such examinations and inquiries. These limitations also apply
to information obtained from examinations or inquiries of employees.
All information obtained from post-offer medical
examinations and inquiries must be collected and maintained on
separate forms, in separate medical files and must be treated
as a confidential medical record. Therefore, an employer should
not place any medical-related material in an employee's personnel
file. The employer should take steps to guarantee the security
of the employee's medical information, including:
- keeping the information in a medical file
in a separate, locked cabinet, apart from the location of personnel
files; and
- designating a specific person or persons
to have access to the medical file.
All medical-related information must be kept
confidential, with the following exceptions:
- Supervisors and managers may be informed
about necessary restrictions on the work or duties of an employee
and necessary accommodations.
- First aid and safety personnel may be informed,
when appropriate, if the disability might require emergency
treatment or if any specific procedures are needed in the case
of fire or other evacuations.
- Government officials investigating compliance
with the ADA and other Federal and state laws prohibiting discrimination
on the basis of disability or handicap should be provided relevant
information on request. (Other Federal laws and regulations
also may require disclosure of relevant medical information.)
- Relevant information may be provided to
state workers' compensation offices or "second injury" funds,
in accordance with state workers' compensation laws. (See Chapter
IX., Workers' Compensation and Work-Related Injury.)
- Relevant information may be provided to
insurance companies where the company requires a medical examination
to provide health or life insurance for employees. (See Health
Insurance and Other Benefit Plans, Chapter VII.)
6.6 Employee Medical Examinations and Inquiries
The ADA's requirements concerning medical
examinations and inquiries of employees are more stringent
than those affecting applicants who are being evaluated for employment
after a conditional job offer. In order for a medical examination
or inquiry to be made of an employee, it must be job related and
consistent with business necessity. The need for the examination
may be triggered by some evidence of problems related to job performance
or safety, or an examination may be necessary to determine whether
individuals in physically demanding jobs continue to be fit for
duty. In either case, the scope of the examination also must be
job-related.
For example:
- An attorney could not be required to submit
to a medical examination or inquiry just because her leg had
been amputated. The essential functions of an attorney's job
do not require use of both legs; therefore such an inquiry would
not be job related.
- An employer may require a warehouse laborer,
whose back impairment affects the ability to lift, to be examined
by an orthopedist, but may not require this employee to submit
to an HIV test where the test is not related to either the essential
functions of his job or to his impairment.
Medical examinations or inquiries may be job
related and necessary under several circumstances:
- When an employee is having difficulty
performing his or her job effectively.
In such cases, a medical examination may be
necessary to determine if s/he can perform essential job functions
with or without an accommodation.
For example: If an employee falls asleep on
the job, has excessive absenteeism, or exhibits other performance
problems, an examination may be needed to determine if the problem
is caused by an underlying medical condition, and whether medical
treatment is needed. If the examination reveals an impairment
that is a disability under the ADA, the employer must consider
possible reasonable accommodations. If the impairment is not a
disability, the employer is not required to make an accommodation.
For example: An
employee may complain of headaches caused by noise at the worksite.
A medical examination may indicate that there is no medically
discernible mental or physiological disorder causing the headaches.
This employee would not be "an individual with a disability" under
the ADA, and the employer would have no obligation to provide
an accommodation. The employer may voluntarily take steps to improve
the noise situation, particularly if other employees also suffer
from noise, but would have no obligation to do so under the ADA.
- When An Employee Becomes Disabled
An employee who is injured on or off the job,
who becomes ill, or suffers any other condition that meets the
ADA definition of "disability," is protected by the Act if s/he
can perform the essential functions of the job with or without
reasonable accommodation.
Employers are accustomed to dealing with injured
workers through the workers' compensation process and disability
management programs, but they have different, although not necessarily
conflicting obligations under the ADA. The relationship between
ADA, workers' compensation requirements and medical examinations
and inquiries is discussed in Chapter IX.
Under the ADA, medical information or medical
examinations may be required when an employee suffers an injury
on the job. Such an examination or inquiry also may be required
when an employee wishes to return to work after an injury or illness,
if it is job-related and consistent with business necessity:
- to determine if the individual meets the
ADA definition of "individual with a disability," if an accommodation
has been requested.
- to determine if the person can perform
essential functions of the job currently held, (or held before
the injury or illness), with or without reasonable accommodation,
and without posing a "direct threat" to health or safety that
cannot be reduced or eliminated by reasonable accommodation.
- to identify an effective accommodation
that would enable the person to perform essential job functions
in the current (previous) job, or in a vacant job for which
the person is qualified (with or without accommodation). (See
Chapter IX.)
- Examination Necessary for Reasonable
Accommodation
A medical examination may be required if an
employee requests an accommodation on the basis of disability.
An accommodation may be needed in an employee's existing job,
or if the employee is being transferred or promoted to a different
job. Medical information may be needed to determine if the employee
has a disability covered by the ADA and is entitled to an accommodation,
and if so, to help identify an effective accommodation.
Medical inquiries related to an employee's
disability and functional limitations may include consultations
with knowledgeable professional sources, such as occupational
and physical therapists, rehabilitation specialists, and organizations
with expertise in adaptations for specific disabilities.
- Medical examinations, screening and
monitoring required by other laws.
Employers may conduct periodic examinations
and other medical screening and monitoring required by federal,
state or local laws. As indicated in Chapter IV, the ADA recognizes
that an action taken to comply with another Federal law is job-related
and consistent with business necessity; however, requirements
of state and local laws do not necessarily meet this standard
unless they are consistent with the ADA.
For example: Employers may conduct medical
examinations and medical monitoring required by:
- The U.S. Department of Transportation for
interstate bus and truck drivers, railroad engineers, airline
pilots and air controllers;
- The Occupational Safety and Health Act:
- The Federal Mine Health and Safety Act;
- Other statutes that require employees exposed
to toxic or hazardous substances to be medically monitored at
specific intervals.
However, if a state or local law required
that employees in a particular job be periodically tested for
AIDS or the HIV virus, the ADA would prohibit such an examination
unless an employer can show that it is job-related and consistent
with business necessity, or required to avoid a direct threat
to health or safety. (See Chapter IV.)
Voluntary "Wellness" and Health Screening
Programs
An employer may conduct voluntary medical
examinations and inquiries as part of an employee health program
(such as medical screening for high blood pressure, weight control,
and cancer detection), providing that:
- participation in the program is voluntary;
- information obtained is maintained according
to the confidentiality requirements of the ADA (See 6.5); and
- this information is not used to discriminate
against an employee.
Information from Medical Inquiries May
Not be Used to Discriminate
An employer may not use information obtained
from an employee medical examination or inquiry to discriminate
against the employee in any employment practice. (See Chapter
VII.)
Confidentiality
All information obtained from employee medical
examinations and inquiries must be maintained and used in accordance
with ADA confidentiality requirements. (See 6.5 above.)
VII. NONDISCRIMINATION
IN OTHER EMPLOYMENT PRACTICES
7.1 Introduction
The nondiscrimination requirements of the
ADA apply to all employment practices and activities. The preceding
chapters have explained these requirements as they apply to job
qualification and selection standards, the hiring process, and
medical examinations and inquiries. This chapter discusses the
application of nondiscrimination requirements to other employment
practices and activities.
In most cases, an employer need only apply
the basic nondiscrimination principles already emphasized; however,
there are also some special requirements applicable to certain
employment activities. This chapter discusses:
- the ADA's prohibition of discrimination
on the basis of a relationship or association with an individual
with a disability;
- nondiscrimination requirements affecting:
- promotion, assignment, training, evaluation,
discipline, advancement opportunity and discharge;
- compensation, insurance, leave, and
other benefits and privileges of employment; and
- contractual relationships.
7.2 Overview of Legal Obligations
- An employer may not discriminate against
a qualified individual with a disability because of the disability,
in any employment practice, or any term, condition or benefit
of employment.
- An employer may not deny an employment
opportunity because an individual, with or without a disability,
has a relationship or association with an individual
who has a disability.
- An employer may not participate in a contractual
or other arrangement that subjects the employer's qualified
applicant or employee with a disability to discrimination.
- An employer may not discriminate or retaliate
against any individual, whether or not the individual is disabled,
because the individual has opposed a discriminatory practice,
filed a discrimination charge, or participated in any way in
enforcing the ADA.
7.3 Nondiscrimination in all Employment
Practices
The ADA prohibits discrimination against a
qualified individual with a disability on the basis of disability
in the following employment practices:
- Recruitment, advertising, and job application
procedures;
- Hiring, upgrading, promotion, award of
tenure, demotion, transfer, layoff, termination, right of return
from layoff, and rehiring;
- Rates of pay or any other form of compensation,
and changes in compensation;
- Job assignments, job classifications, organizational
structures, position descriptions, lines of progression, and
seniority lists;
- Leaves of absence, sick leave, or any other
leave;
- Fringe benefits available by virtue of
employment, whether or not administered by the covered entity;
- Selection and financial support for training,
including: apprenticeships, professional meetings, conferences,
and other related activities, and selection for leaves of absence
to pursue training;
- Activities sponsored by a covered entity
including social and recreational programs; and
- Any other term, condition, or privilege
of employment.
Nondiscrimination, as applied to all employment
practices, means that:
- an individual with a disability should
have equal access to any employment opportunity available to
a similarly situated individual who is not disabled;
- employment decisions concerning an employee
or applicant should be based on objective factual evidence about
the particular individual, not on assumptions or stereotypes
about the individual's disability;
- the qualifications of an individual with
a disability may be evaluated on ability to perform all job-related
functions, with or without reasonable accommodation. However,
an individual may not be excluded from a job because a disability
prevents performance of marginal job functions;
- an employer must provide a reasonable accommodation
that will enable an individual with a disability to have an
equal opportunity in every aspect of employment, unless a particular
accommodation would impose an undue hardship;
- an employer may not use an employment practice
or policy that screens out or tends to screen out an individual
with a disability or a class of individuals with disabilities,
unless the practice or policy is job related and consistent
with business necessity and the individual cannot be accommodated
without undue hardship;
- an employer may not limit, segregate, or
classify an individual with a disability in any way that negatively
affects the individual in terms of job opportunity and advancement;
- an individual with a disability should
not because of a disability be treated differently than a similarly
situated individual in any aspect of employment, except when
a reasonable accommodation is needed to provide an equal employment
opportunity, or when another Federal law or regulation requires
different treatment.
These requirements are discussed in this chapter
as they apply to various employment practices. The prohibition
against retaliation is discussed in Chapter X.
7.4 Nondiscrimination and Relationship
or Association with an Individual with a Disability
The ADA specifically provides that an employer
or other covered entity may not deny an employment opportunity
or benefit to an individual, whether or not that individual is
disabled, because that individual has a known relationship or
association with an individual who has a disability. Nor may an
employer discriminate in any other way against an individual,
whether or not disabled, because that individual has such a relationship
or association.
The term "relationship or association" refers
to family relationships and any other social or business relationship
or association. Therefore, this provision of the law prohibits
employers from making employment decisions based on concerns about
the disability of a family member of an applicant or employee,
or anyone else with whom this person has a relationship or association.
For example: An employer may not:
- refuse to hire or fire an individual because
the individual has a spouse, child, or other dependent who has
a disability. The employer may not assume that the individual
will be unreliable, have to use leave time, or be away from
work in order to care for the family member with a disability;
- refuse to hire or fire an individual because
s/he has a spouse, child or other dependent who has a disability
that is either not covered by the employer's current health
insurance plan or that may cause future increased health care
costs;
- refuse to insure, or subject an individual
to different terms or conditions of insurance, solely because
the individual has a spouse, child, or other dependent who has
a disability;
- refuse to hire or fire an individual because
the individual has a relationship or association with a person
or persons who have disabilities.
For example: an employer cannot fire an employee
because s/he does volunteer work with people who have AIDS.
This provision of the law prohibits discrimination
in employment decisions concerning an individual, whether the
individual is or is not disabled, because of a known relationship
or association with an individual with a disability. However,
an employer is not obligated to provide a reasonable accommodation
to a nondisabled individual, because this person has a relationship
or association with a disabled individual. The obligation to make
a reasonable accommodation applies only to qualified individuals
with disabilities.
For example: The
ADA does not require that an employer provide an employee who
is not disabled with a modified work schedule as an accommodation,
to enable the employee to care for a spouse or child with a disability.
7.5 Nondiscrimination and Opportunity for
Advancement
The nondiscrimination requirements that apply
to initial selection apply to all aspects of employment, including
opportunities for advancement. For example, an employer may not
discriminate in promotion, job classification, evaluation, disciplinary
action, opportunities for training, or participation in meetings
and conferences. In particular, an employer:
- should not assume that an individual is
not interested in, or not qualified for, advancement because
of disability;
- should not deny a promotion because of
the need to make an accommodation, unless the accommodation
would cause an undue hardship;
- should not place individuals with disabilities
in separate lines of progression or in segregated units or locations
that limit opportunity for advancement;
- should assure that supervisors and managers
who make decisions regarding promotion and advancement are aware
of ADA nondiscrimination requirements.
7.6 Training
Employees with disabilities must be provided
equal opportunities to participate in training to improve job
performance and provide opportunity for advancement. Training
opportunities cannot be denied because of the need to make a reasonable
accommodation, unless the accommodation would be an undue hardship.
Accommodations that may be necessary, depending on the needs of
particular individuals, may include:
- accessible locations and facilities for
people with mobility disabilities;
- interpreters and note-takers for employees
who are deaf;
- materials in accessible formats and/or
readers for people who are visually impaired, for people with
learning disabilities, and for people with mental retardation;
- if audiovisual materials are used, captions
for people who are deaf, and voice-overs for people who are
visually impaired;
- good lighting on an interpreter, and good
general illumination for people with visual impairments and
other disabilities;
- clarification of concepts presented in
training for people who have reading or other disabilities;
- individualized instruction for people with
mental retardation and certain other disabilities.
If an employer contracts for training with
a training company, or contracts for training facilities such
as hotels or conference centers, the employer is responsible for
assuring accessibility and other needed accommodations.
It is advisable that any contract with a company
or facility used for training include a provision requiring the
other party to provide needed accommodations. However, if the
contractor does not do so, the employer remains responsible for
providing the accommodation, unless it would cause an undue hardship.
For example: Suppose a company with which
an employer has contracted proposes to conduct training at an
inaccessible location. The employer is responsible for providing
an accommodation that would enable an employee who uses a wheelchair
to obtain this training. The employer might do this by: requiring
the training company to relocate the program to an accessible
site; requiring the company to make the site (including all facilities
used by trainees) accessible; making the site accessible or providing
resources that enable the training company to do so; contracting
with another training company that uses accessible sites; or providing
any other accommodation (such as temporary ramps) that would not
impose an undue hardship. If it is impossible to make an accommodation
because the need is only discovered when an employee arrives at
the training site, the employer may have to provide accessible
training at a later date.
Or, for example:
An employer contracts with a hotel to hold a conference for its
employees. The employer must assure physical and communications
accessibility for employees with disabilities, including accessibility
of guest rooms and all meeting and other rooms used by attendees.
The employer may assure accessibility by inspecting the site,
or may ask a local disability group with accessibility expertise
(such as an Independent Living Center) to do so. The employer
remains responsible for assuring accessibility. However, if the
hotel breaches a contract provision requiring accessibility, the
hotel may be liable to the employer under regular (non-ADA) breach
of contract law. The hotel also may be liable under Title III
of the ADA, which requires accessibility in public accommodations.
7.7 Evaluations, Discipline and Discharge
- An employer can hold employees with disabilities
to the same standards of production/performance as other similarly
situated employees without disabilities for performing essential
job functions (with or without reasonable accommodation).
- An employer also can hold employees with
disabilities to the same standards of production/performance
as other employees regarding marginal job functions, unless
the disability affects the ability to perform these marginal
functions. If the ability to perform marginal functions is affected
by the disability, the employer must provide some type of reasonable
accommodation such as job restructuring (unless to do so would
be an undue hardship).
- A disabled employee who needs an accommodation
(that is not an undue hardship for an employer) in order to
perform a job function should not be evaluated on his/her ability
to perform the function without the accommodation, and should
not be downgraded because such an accommodation is needed to
perform the function.
- An employer should not give employees with
disabilities "special treatment." They should not be evaluated
on a lower standard or disciplined less severely than any other
employee. This is not equal employment opportunity.
- An employer must provide an employee with
a disability with reasonable accommodation necessary to enable
the employee to participate in the evaluation process (for example,
counseling or an interpreter).
- If an employee with a disability is not
performing well, an employer may require medical and other professional
inquiries that are job-related and consistent with business
necessity to discover whether the disability is causing the
poor performance, and whether any reasonable accommodation or
additional accommodation is needed. (See Chapter VI.)
- An employer may take the same disciplinary
action against employees with disabilities as it takes against
other similarly situated employees, if the illegal use of drugs
or alcohol use affects job performance and/or attendance. (See
Chapter VIII.)
- An employer may not discipline or terminate
an employee with a disability if the employer has refused to
provide a requested reasonable accommodation that did not constitute
an undue hardship, and the reason for unsatisfactory performance
was the lack of accommodation.
7.8 Compensation
- An employer cannot reduce pay to an employee
with a disability because of the elimination of a marginal job
function or because it has provided a reasonable accommodation,
such as specialized or modified equipment. The employer can
give the employee with a disability other marginal functions
that s/he can perform.
- An employee who is reassigned to a lower
paying job or provided a part-time job as an accommodation may
be paid the lower amount that would apply to such positions,
consistent with the employer's regular compensation practices.
7.9 Health Insurance and Other Employee
Benefit Plans
As discussed above, an employer or other covered
entity may not limit, segregate or classify an individual with
a disability, on the basis of disability, in a manner that adversely
affects the individual's employment. This prohibition applies
to the provision and administration of health insurance and other
benefit plans, such as life insurance and pension plans.
This means that:
- If an employer provides insurance or other
benefit plans to its employees, it must provide the same coverage
to its employees with disabilities. Employees with disabilities
must be given equal access to whatever insurance or benefit
plans the employer provides.
- An employer cannot deny insurance to an
individual with a disability or subject an individual with a
disability to different terms or conditions of insurance, based
on disability alone, if the disability does not pose increased
insurance risks. Nor may the employer enter into any contract
or agreement with an insurance company or other entity that
has such effect.
- An employer cannot fire or refuse to hire
an individual with a disability because the employer's current
health insurance plan does not cover the individual's disability,
or because the individual may increase the employer's future
health care costs.
- An employer cannot fire or refuse to hire
an individual (whether or not that individual has a disability)
because the individual has a family member or dependent with
a disability that is not covered by the employer's current health
insurance plan, or that may increase the employer's future health
care costs.
While establishing these protections for employees
with disabilities, the ADA permits employers to provide insurance
plans that comply with existing Federal and state insurance requirements,
even if provisions of these plans have an adverse affect on people
with disabilities, provided that the provisions are not used as
a subterfuge to evade the purpose of the ADA.
Specifically, the ADA provides that:
- Where an employer provides health insurance
through an insurance carrier that is regulated by state law,
it may provide coverage in accordance with accepted principles
of risk assessment and/or risk classification, as required or
permitted by such law, even if this causes limitations in coverage
for individuals with disabilities.
- Similarly, self-insured plans which are
not subject to state law may provide coverage in a manner that
is consistent with basic accepted principles of insurance risk
classification, even if this results in limitations in coverage
to individuals with disabilities.
In each case, such activity is permitted only
if it is not being used as a subterfuge to evade the intent of
the ADA. Whether or not an activity is being used as a subterfuge
will be determined regardless of the date that the insurance plan
or employee benefit plan was adopted.
This means that:
- An employer may continue to offer health
insurance plans that contain pre-existing condition exclusions,
even if this adversely affects individuals with disabilities,
unless these exclusions are being used as a subterfuge to evade
the purpose of the ADA.
- An employer may continue to offer health
insurance plans that limit coverage for certain procedures,
and/or limit particular treatments to a specified number per
year, even if these restrictions adversely affect individuals
with disabilities, as long as the restrictions are uniformly
applied to all insured individuals, regardless of the disability.
For example, an employer can offer a health
insurance plan that limits coverage of blood transfusions to five
transfusions per year for all employees, even though an employee
with hemophilia may require more than five transfusions per year.
However, the employer could not deny this employee coverage for
another, otherwise covered procedure, because the plan will not
pay for the additional blood transfusions that the procedure would
require.
· An employer may continue to offer
health insurance plans that limit reimbursements for certain types
of drugs or procedures, even if these restrictions adversely affect
individuals with disabilities, as long as the restrictions are
uniformly applied without regard to disability.
For example, an employer can offer a health
insurance plan that does not cover experimental drugs or procedures,
as long as this restriction is applied to all insured individuals.
7.10 Leave
- An employer may establish attendance and
leave policies that are uniformly applied to all employees,
regardless of disability, but may not refuse leave needed by
an employee with a disability if other employees get such leave.
- An employer may be required to make adjustments
in leave policy as a reasonable accommodation. The employer
is not obligated to provide additional paid leave, but accommodations
may include leave flexibility and unpaid leave. (See Chapter
III.)
- A uniformly applied leave policy does not
violate the ADA because it has a more severe effect on an individual
because of his/her disability. However, if an individual with
a disability requests a modification of such a policy as a reasonable
accommodation, an employer may be required to provide it, unless
it would impose an undue hardship.
For example: If an employer has a policy providing
2 weeks paid leave for all employees, with no other provision
for sick leave and a "no leave" policy for the first 6 months
of employment, an employee with a disability who cannot get leave
for needed medical treatment could not successfully charge that
the employer's policy is discriminatory on its face. However,
this individual could request leave without pay or advance leave
as a reasonable accommodation. Such leave should be provided,
unless the employer can show undue hardship: For example, an employer
might be able to show that it is necessary for the operation of
the business that this employee be available for the time period
when leave is requested.
- An employer is not required to give leave
as a reasonable accommodation to an employee who has a relationship
with an individual with a disability to enable the employee
to care for that individual. (See p. 8 above.)
7.11 Contractual or Other Relationships
An employer may not do anything through a
contractual relationship that it cannot do directly. This applies
to any contracts, including contracts with:
- training organizations (see above);
- insurers (see above);
- employment agencies and agencies used for
background checks (see Chapter V);
- labor unions (see below).
7.11(a)Collective Bargaining Agreements
Labor unions are covered by the ADA and have
the same obligation as the employer to comply with its requirements.
An employer also is prohibited by the ADA from taking any action
through a labor union contract that it may not take itself.
For example: If a union contract contained
physical requirements for a particular job that screened out people
with disabilities who were qualified to perform the job, and these
requirements are not job-related and consistent with business
necessity, they could be challenged as discriminatory by a qualified
individual with a disability.
The terms of a collective bargaining agreement
may be relevant in determining whether a particular accommodation
would cause an employer undue hardship.
For example: If the collective bargaining
agreement reserves certain jobs for employees with a given amount
of seniority, this may be considered as a factor in determining
whether it would be an undue hardship to reassign an individual
with a disability who does not have seniority to a vacant job.
Where a collective bargaining agreement identifies
functions that must be performed in a particular job, the agreement,
like a job description, may be considered as evidence of what
the employer and union consider to be a job's essential functions.
However, just because a function is listed in a union agreement
does not mean that it is an essential function. The agreement,
like the job description, will be considered along with other
types of evidence. (See Chapter II.)
The Congressional Committee Reports accompanying
the ADA advised employers and unions that they could carry out
their responsibilities under the Act, and avoid conflicts between
the bargaining agreement and the employer's duty to provide reasonable
accommodation, by adding a provision to agreements negotiated
after the effective date of the ADA, permitting the employer to
take all actions necessary to comply with the Act.
7.12 Nondiscrimination in Other Benefits
and Privileges of Employment
Nondiscrimination requirements, including
the obligation to make reasonable accommodation, apply to all
social or recreational activities provided or conducted by an
employer, to any transportation provided by an employer for its
employees or applicants, and to all other benefits and privileges
of employment.
This means that:
- Employees with disabilities must have an
equal opportunity to attend and participate in any social functions
conducted or sponsored by an employer. Functions such as parties,
picnics, shows, and award ceremonies should be held in accessible
locations, and interpreters or other accommodation should be
provided when necessary.
- Employees with disabilities must have equal
access to break rooms, lounges, cafeterias, and any other non-work
facilities that are provided by an employer for use by its employees.
- Employees with disabilities must have equal
access to an exercise room, gymnasium, or health club provided
by an employer for use by its employees. However, an employer
would not have to eliminate facilities provided for employees
because a disabled employee cannot use certain equipment or
amenities because of his/her disability. For example, an employer
would not have to remove certain exercise machines simply because
an employee who is a paraplegic could not use them.
- Employees with disabilities must be given
an equal opportunity to participate in employer-sponsored sports
teams, leagues, or recreational activities such as hiking or
biking clubs. However, the employer does not have to discontinue
such activities because a disabled employee cannot fully participate
due to his/her disability. For example, an employer would not
have to discontinue the company biking club simply because a
blind employee is unable to ride a bicycle.
- Any transportation provided by an employer
for use by its employees must be accessible to employees with
a disability. This includes transportation between employer
facilities, transportation to or from mass transit and transportation
provided on a occasional basis to employer-sponsored events.
VIII. DRUG AND ALCOHOL
ABUSE
8.1 Introduction
The ADA specifically permits employers to
ensure that the workplace is free from the illegal use of drugs
and the use of alcohol, and to comply with other Federal laws
and regulations regarding alcohol and drug use. At the same time,
the ADA provides limited protection from discrimination for recovering
drug addicts and for alcoholics.
8.2 Overview of Legal Obligations
- An individual who is currently engaging
in the illegal use of drugs is not an "individual with a disability"
when the employer acts on the basis of such use.
- An employer may prohibit the illegal use
of drugs and the use of alcohol at the workplace.
- It is not a violation of the ADA for an
employer to give tests for the illegal use of drugs.
- An employer may discharge or deny employment
to persons who currently engage in the illegal use of drugs.
- An employer may not discriminate against
a drug addict who is not currently using drugs and who has been
rehabilitated, because of a history of drug addiction.
- A person who is an alcoholic is an "individual
with a disability" under the ADA.
- An employer may discipline, discharge or
deny employment to an alcoholic whose use of alcohol impairs
job performance or conduct to the extent that s/he is not a
"qualified individual with a disability."
- Employees who use drugs or alcohol may
be required to meet the same standards of performance and conduct
that are set for other employees.
- Employees may be required to follow the
Drug-Free Workplace Act of 1988 and rules set by Federal agencies
pertaining to drug and alcohol use in the workplace.
8.3 Illegal Use of Drugs
An employer may discharge or deny employment
to current illegal users of drugs, on the basis of such drug use,
without fear of being held liable for disability discrimination.
Current illegal users of drugs are not "individuals with disabilities"
under the ADA.
The illegal use of drugs includes the use,
possession, or distribution of drugs which are unlawful under
the Controlled Substances Act. It includes the use of illegal
drugs and the illegal use of prescription drugs that are "controlled
substances".
For example: Amphetamines can be legally prescribed
drugs. However, amphetamines, by law, are "controlled substances"
because of their abuse and potential for abuse. If a person takes
amphetamines without a prescription, that person is using drugs
illegally, even though they could be prescribed by a physician.
The illegal use of drugs does not include
drugs taken under supervision of a licensed health care professional,
including experimental drugs for people with AIDS, epilepsy, or
mental illness.
For example: A person who takes morphine for
the control of pain caused by cancer is not using a drug illegally
if it is taken under the supervision of a licensed physician.
Similarly, a participant in a methadone maintenance treatment
program cannot be discriminated against by an employer based upon
the individual's lawful use of methadone.
An individual who illegally uses drugs but
also has a disability, such as epilepsy, is only protected by
the ADA from discrimination on the basis of the disability (epilepsy).
An employer can discharge or deny employment to such an individual
on the basis of his/her illegal use of drugs.
What does "current" drug use mean?
If an individual tests positive on a test
for the illegal use of drugs, the individual will be considered
a current drug user under the ADA where the test correctly indicates
that the individual is engaging in the illegal use of a controlled
substance.
"Current" drug use means that the illegal
use of drugs occurred recently enough to justify an employer's
reasonable belief that involvement with drugs is an on-going problem.
It is not limited to the day of use, or recent weeks or days,
in terms of an employment action. It is determined on a case-by-case
basis.
For example: An applicant or employee who
tests positive for an illegal drug cannot immediately enter a
drug rehabilitation program and seek to avoid the possibility
of discipline or termination by claiming that s/he now is in rehabilitation
and is no longer using drugs illegally. A person who tests positive
for illegal use of drugs is not entitled to the protection that
may be available to former users who have been or are in rehabilitation
(see below).
8.4 Alcoholism
While a current illegal user of drugs has
no protection under the ADA if the employer acts on the basis
of such use, a person who currently uses alcohol is not automatically
denied protection simply because of the alcohol use. An alcoholic
is a person with a disability under the ADA and may be entitled
to consideration of accommodation, if s/he is qualified to perform
the essential functions of a job. However, an employer may discipline,
discharge or deny employment to an alcoholic whose use of alcohol
adversely affects job performance or conduct to the extent that
s/he is not "qualified."
For example: If an individual who has alcoholism
often is late to work or is unable to perform the responsibilities
of his/her job, an employer can take disciplinary action on the
basis of the poor job performance and conduct. However, an employer
may not discipline an alcoholic employee more severely than it
does other employees for the same performance or conduct.
8.5 Recovering Drug Addicts
Persons addicted to drugs, but who are no
longer using drugs illegally and are receiving treatment for drug
addiction or who have been rehabilitated successfully, are protected
by the ADA from discrimination on the basis of past drug
addiction.
For example: An addict who is currently in
a drug rehabilitation program and has not used drugs illegally
for some time is not excluded from the protection of the ADA.
This person will be protected by the ADA because s/he has a history
of addiction, or if s/he is "regarded as" being addicted. Similarly,
an addict who is rehabilitated or who has successfully completed
a supervised rehabilitation program and is no longer illegally
using drugs is not excluded from the ADA.
However, a person who casually used drugs
illegally in the past, but did not become addicted is not an individual
with a disability based on the past drug use. In order for a person
to be "substantially limited" because of drug use, s/he must be
addicted to the drug.
To ensure that drug use is not recurring,
an employer may request evidence that an individual is participating
in a drug rehabilitation program or may request the results of
a drug test (see below).
A "rehabilitation program" may include in-patient,
out-patient, or employee assistance programs, or recognized self-help
programs such as Narcotics Anonymous.
8.6 Persons "Regarded As" Addicts and Illegal
Drug Users
Individuals who are not illegally using drugs,
but who are erroneously perceived as being addicts and as currently
using drugs illegally, are protected by the ADA.
For example: If an employer perceived someone
to be addicted to illegal drugs based upon rumor and the groggy
appearance of the individual, but the rumor was false and the
appearance was a side-effect of a lawfully prescribed medication,
this individual would be "regarded as" an individual with a disability
(a drug addict) and would be protected from discrimination based
upon that false assumption. If an employer did not regard the
individual as an addict, but simply as a social user of illegal
drugs, the individual would not be "regarded as" an individual
with a disability and would not be protected by the ADA.
As with other disabilities, an individual
who claims that s/he was discriminated against because of past
or perceived illegal drug addiction, may be asked to prove that
s/he has a record of, or is regarded as having, an addiction to
drugs.
8.7 Efforts to Prohibit Drug and Alcohol
Use in the Workplace
The ADA does not prevent efforts to combat
the use of drugs and alcohol in the workplace
The ADA does not interfere with employers'
programs to combat the use of drugs and alcohol in the workplace.
The Act specifically provides that an employer may:
- prohibit the use of drugs and alcohol in
the workplace.
- require that employees not be under the
influence of alcohol or drugs in the workplace.
For example: An employer can require that
employees not come to work or return from lunch under the influence
of alcohol, or drugs used illegally.
· Require that employees who illegally
use drugs or alcohol meet the same qualification and performance
standards applied to other employees. Unsatisfactory behavior
such as absenteeism, tardiness, poor job performance, or accidents
caused by alcohol or illegal drug use need not be accepted nor
accommodated.
For example: If an employee is often late
or does not show up for work because of alcoholism, an employer
can take direct action based on the conduct. However, an employer
would violate the ADA if it imposed greater sanctions on such
an alcoholic employee than it did on other employees for the same
misconduct.
While the ADA permits an employer to discipline
or discharge an employee for illegal use of drugs or where alcoholism
results in poor performance or misconduct, the Act does not require
this. Many employers have established employee assistance programs
for employees who abuse drugs or alcohol that are helpful to both
employee and employer. However, the ADA does not require an
employer to provide an opportunity for rehabilitation in place
of discipline or discharge to such employees. The ADA may, however,
require consideration of reasonable accommodation for a drug addict
who is rehabilitated and not using drugs or an alcoholic who remains
a "qualified individual with a disability." For example, a modified
work schedule, to permit the individual to attend an ongoing self-help
program, might be a reasonable accommodation for such an employee.
An employer can fire or refuse to hire a person
with a past history of illegal drug use, even if the person no
longer uses drugs, in specific occupations, such as law enforcement,
when an employer can show that this policy is job-related and
consistent with business necessity.
For example: A law enforcement agency might
be able to show that excluding an individual with a history of
illegal drug use from a police officer position was necessary,
because such illegal conduct would undermine the credibility of
the officer as a witness for the prosecution in a criminal case.
However, even in this case, exclusion of a person with a history
of illegal drug use might not be justified automatically as a
business necessity, if an applicant with such a history could
demonstrate an extensive period of successful performance as a
police officer since the time of drug use.
An employer also may fire or refuse to hire
an individual with a history of alcoholism or illegal drug use
if it can demonstrate that the individual poses a "direct threat"
to health or safety because of the high probability that s/he
would return to the illegal drug use or alcohol abuse. The employer
must be able to demonstrate that such use would result in a high
probability of substantial harm to the individual or others which
could not be reduced or eliminated with a reasonable accommodation.
Examples of accommodations in such cases might be to require periodic
drug or alcohol tests, to modify job duties or to provide increased
supervision.
An employer cannot prove a "high probability"
of substantial harm simply by referring to statistics indicating
the likelihood that addicts or alcoholics in general have a specific
probability of suffering a relapse. A showing of "significant
risk of substantial harm" must be based upon an assessment of
the particular individual and his/her history of substance abuse
and the specific nature of the job to be performed.
For example: An employer could justify excluding
an individual who is an alcoholic with a history of returning
to alcohol abuse from a job as a ship captain.
8.8 Pre-Employment Inquiries About Drug
and Alcohol Use
An employer may make certain pre-employment,
pre-offer inquiries regarding use of alcohol or the illegal use
of drugs. An employer may ask whether an applicant drinks alcohol
or whether he or she is currently using drugs illegally. However,
an employer may not ask whether an applicant is a drug addict
or alcoholic, nor inquire whether s/he has ever been in a drug
or alcohol rehabilitation program. (See also Pre-Employment Inquiries,
Chapter V.)
After a conditional offer of employment, an
employer may ask any questions concerning past or present drug
or alcohol use. However, the employer may not use such information
to exclude an individual with a disability, on the basis of a
disability, unless it can show that the reason for exclusion is
job-related and consistent with business necessity, and that legitimate
job criteria cannot be met with a reasonable accommodation. (For
more information on pre-employment medical inquiries, see Chapter
VI.)
8.9 Drug Testing
An employer may conduct tests to detect illegal
use of drugs. The ADA does not prohibit, require, or encourage
drug tests. Drug tests are not considered medical examinations,
and an applicant can be required to take a drug test before a
conditional offer of employment has been made. An employee also
can be required to take a drug test, whether or not such a test
is job-related and necessary for the business. (On the other hand,
a test to determine an individual's blood alcohol level would
be a "medical examination" and only could be required by an employer
in conformity with the ADA.)
An employer may refuse to hire an applicant
or discharge or discipline an employee based upon a test result
that indicates the illegal use of drugs. The employer may take
these actions even if an applicant or employee claims that s/he
recently stopped illegally using drugs.
Employers may comply with applicable Federal,
State, or local laws regulating when and how drug tests may be
used, what drug tests may be used, and confidentiality. Drug tests
must be conducted to detect illegal use of drugs. However, tests
for illegal use of drugs also may reveal the presence of lawfully-used
drugs. If a person is excluded from a job because the employer
erroneously "regarded" him/her to be an addict currently using
drugs illegally when a drug test revealed the presence of a lawfully
prescribed drug, the employer would be liable under the ADA. To
avoid such potential liability, the employer would have to determine
whether the individual was using a legally prescribed drug. Because
the employer may not ask what prescription drugs an individual
is taking before making a conditional job offer, one way to avoid
liability is to conduct drug tests after making an offer, even
though such tests may be given at anytime under the ADA. Since
applicants who test positive for illegal drugs are not covered
by the ADA, an employer can withdraw an offer of employment on
the basis of illegal drug use.
If the results of a drug test indicate the
presence of a lawfully prescribed drug, such information must
be kept confidential, in the same way as any medical record. If
the results reveal information about a disability in addition
to information about drug use, the disability-related information
is to be treated as a confidential medical record. (See confidentiality
requirements regarding medical inquiries and examinations in Chapter
VI.)
For example: If drug test results indicate
that an individual is HIV positive, or that a person has epilepsy
or diabetes because use of a related prescribed medicine is revealed,
this information must remain confidential.
8.10 Laws and Regulations Concerning Drugs
and Alcohol
An employer may comply with other Federal
laws and regulations concerning the use of drugs and alcohol,
including the Drug-Free Workplace Act of 1988; regulations applicable
to particular types of employment, such as law enforcement positions;
regulations of the Department of Transportation for airline employees,
interstate motor carrier drivers and railroad engineers; and regulations
for safety sensitive positions established by the Department of
Defense and the Nuclear Regulatory Commission. Employers may continue
to require that their applicants and employees comply with such
Federal laws and regulations.
For example: A trucking company can take appropriate
action if an applicant or employee tests positive on a drug test
required by Department of Transportation regulations or refuses
to take such a drug test.
IX. WORKERS' COMPENSATION
AND WORK-RELATED INJURY
9.1 Overview of Legal Obligations
- An employer may not inquire into an applicant's
workers' compensation history before making a conditional offer
of employment.
- After making a conditional job offer, an
employer may ask about a person's workers' compensation history
in a medical inquiry or examination that is required of all
applicants in the same job category.
- An employer may not base an employment
decision on the speculation that an applicant may cause increased
workers' compensation costs in the future. However, an employer
may refuse to hire, or may discharge an individual who is not
currently able to perform a job without posing a significant
risk of substantial harm to the health or safety of the individual
or others, if the risk cannot be eliminated or reduced by reasonable
accommodation. (See Standards Necessary for Health and Safety:
A "Direct Threat", Chapter IV.)
- An employer may submit medical information
and records concerning employees and applicants (obtained after
a conditional job offer) to state workers' compensation offices
and "second injury" funds without violating ADA confidentiality
requirements.
- Only injured workers who meet the ADA's
definition of an "individual with a disability" will be considered
disabled under the ADA, regardless of whether they satisfy criteria
for receiving benefits under workers' compensation or other
disability laws. A worker also must be "qualified" (with or
without reasonable accommodation) to be protected by the ADA.
9.2 Is a Worker Injured on the Job Protected
by the ADA?
Whether an injured worker is protected by
the ADA will depend on whether or not the person meets the ADA
definitions of an "individual with a disability" and "qualified
individual with a disability." (See Chapter II.) The person must
have an impairment that "substantially limits a major life activity,"
have a "record of" or be "regarded as" having such an impairment.
S/he also must be able to perform the essential functions of a
job currently held or desired, with or without an accommodation.
Clearly, not every employee injured on the
job will meet the ADA definition. Work-related injuries do not
always cause physical or mental impairments severe enough to "substantially
limit" a major life activity. Also, many on-the-job injuries cause
non-chronic impairments which heal within a short period of time
with little or no long-term or permanent impact. Such injuries,
in most circumstances, are not considered disabilities under the
ADA.
The fact that an employee is awarded workers'
compensation benefits, or is assigned a high workers' compensation
disability rating, does not automatically establish that this
person is protected by the ADA. In most cases, the definition
of disability under state workers' compensation laws differs from
that under the ADA, because the state laws serve a different purpose.
Workers' compensation laws are designed to provide needed assistance
to workers who suffer many kinds of injuries, whereas the ADA's
purpose is to protect people from discrimination on the basis
of disability.
Thus, many injured workers who qualify for
benefits under workers' compensation or other disability benefits
laws may not be protected by the ADA. An employer must consider
work-related injuries on a case-by-case basis to know if a worker
is protected by the ADA. Many job injuries are not "disabling"
under the ADA, but it also is possible that an impairment which
is not "substantially limiting" in one circumstance could result
in, or lead to, disability in other circumstances.
For example: Suppose a construction worker
falls from a ladder and breaks a leg and the leg heals normally
within a few months. Although this worker may be awarded workers'
compensation benefits for the injury, he would not be considered
a person with a disability under the ADA. The impairment suffered
from the injury did not "substantially limit" a major life activity,
since the injury healed within a short period and had little or
no long-term impact. However, if the worker's leg took significantly
longer to heal than the usual healing period for this type of
injury, and during this period the worker could not walk, s/he
would be considered to have a disability. Or, if the injury caused
a permanent limp, the worker might be considered disabled under
the ADA if the limp substantially limited his walking, as compared
to the average person in the general population.
An employee who was seriously injured while
working for a former employer, and was unable to work for a year
because of the injury, would have a "record of" a substantially
limiting impairment. If an employer refused to hire or promote
this person on the basis of that record, even if s/he had recovered
in whole or in part from the injury, this would be a violation
of the ADA.
If an impairment or condition caused by an
on-the-job injury does not substantially limit an employee's ability
to work, but the employer regards the individual as having an
impairment that makes him/her unable to perform a class of jobs,
such as "heavy labor," this individual would be "regarded"
by the employer as having a disability. An employer who refused
to hire or discharged an individual because of this perception
would violate the ADA.
Of course, in each of the examples above,
the employer would only be liable for discrimination if the individual
was qualified for the position held or desired, with or without
an accommodation.
9.3 What Can an Employer Do to Avoid Increased
Workers' Compensation Costs and Comply With the ADA?
The ADA allows an employer to take reasonable
steps to avoid increased workers' compensation liability while
protecting persons with disabilities against exclusion from jobs
they can safely perform.
Steps the Employer May Take
After making a conditional job offer, an employer
may inquire about a person's workers' compensation history in
a medical inquiry or examination that is required of all applicants
in the same job category. However, an employer may not require
an applicant to have a medical examination because a response
to a medical inquiry (as opposed to results from a medical examination)
discloses a previous on-the-job injury, unless all applicants
in the same job category are required to have the examination.
(See Chapter V.)
The employer may use information from medical
inquiries and examinations for various purposes, such as:
- to verify employment history;
- to screen out applicants with a history
of fraudulent workers' compensation claims;
- to provide information to state officials
as required by state laws regulating workers' compensation and
"second injury" funds;
- to screen out individuals who would pose
a "direct threat" to health or safety of themselves or others,
which could not be reduced to an acceptable level or eliminated
by a reasonable accommodation. (See Chapter IV.)
9.4 What Can an Employer Do When a Worker
is Injured on the Job?
Medical Examinations
An employer may only make medical examinations
or inquiries of an employee regarding disability if such examinations
are job-related and consistent with business necessity. If a worker
has an on-the-job injury which appears to affect his/her ability
to do essential job functions, a medical examination or inquiry
is job-related and consistent with business necessity. A medical
examination or inquiry also may be necessary to provide reasonable
accommodation. (See Chapter VI.)
When a worker wishes to return to work after
absence due to accident or illness, s/he can only be required
to have a "job-related" medical examination, not a full physical
exam, as a condition of returning to work.
The ADA prohibits an employer from discriminating
against a person with a disability who is "qualified" for a desired
job. The employer cannot refuse to let an individual with a disability
return to work because the worker is not fully recovered from
injury, unless s/he: (1) cannot perform the essential functions
of the job s/he holds or desires with or without an accommodation;
or (2) would pose a significant risk of substantial harm that
could not be reduced to an acceptable level with reasonable accommodation.
(See Chapter IV.) Since reasonable accommodation may include reassignment
to a vacant position, an employer may be required to consider
an employee's qualifications to perform other vacant jobs for
which s/he is qualified, as well as the job held when injured.
"Light Duty" Jobs
Many employers have established "light duty"
positions to respond to medical restrictions on workers recovering
from job-related injuries, in order to reduce workers' compensation
liability. Such positions usually place few physical demands on
an employee and may include tasks such as answering the telephone
and simple administrative work. An employee's placement in such
a position is often limited by the employer to a specific period
of time.
The ADA does not require an employer to create
a "light duty" position unless the "heavy duty" tasks an injured
worker can no longer perform are marginal job functions which
may be reallocated to co-workers as part of the reasonable accommodation
of job-restructuring. In most cases however, "light duty" positions
involve a totally different job from the job that a worker performed
before the injury. Creating such positions by job restructuring
is not required by the ADA. However, if an employer already has
a vacant light duty position for which an injured worker is qualified,
it might be a reasonable accommodation to reassign the worker
to that position. If the position was created as a temporary job,
a reassignment to that position need only be for a temporary period.
When an employer places an injured worker
in a temporary "light duty" position, that worker is "otherwise
qualified" for that position for the term of that position; a
worker's qualifications must be gauged in relation to the position
occupied, not in relation to the job held prior to the injury.
It may be necessary to provide additional reasonable accommodation
to enable an injured worker in a light duty position to perform
the essential functions of that position.
For example: Suppose a telephone line repair
worker broke both legs and fractured her knee joints in a fall.
The treating physician states that the worker will not be able
to walk, even with crutches, for at least nine months. She therefore
has a "disability." Currently using a wheelchair, and unable to
do her previous job, she is placed in a "light duty" position
to process paperwork associated with line repairs. However, the
office to which she is assigned is not wheelchair accessible.
It would be a reasonable accommodation to place the employee in
an office that is accessible. Or, the office could be made accessible
by widening the office door, if this would not be an undue hardship.
The employer also might have to modify the employee's work schedule
so that she could attend weekly physical therapy sessions.
Medical information may be very useful to
an employer who must decide whether an injured worker can come
back to work, in what job, and, if necessary, with what accommodations.
A physician may provide an employer with relevant information
about an employee's functional abilities, limitations, and work
restrictions. This information will be useful in determining how
to return the employee to productive work, but the employer bears
the ultimate responsibility for deciding whether the individual
is qualified, with or without a reasonable accommodation. Therefore,
an employer cannot avoid liability if it relies on a physician's
advice which is not consistent with ADA requirements.
9.5 Do the ADA's Pre-Employment Inquiry
and Confidentiality Restrictions Prevent an Employer from Filing
Second Injury Fund Claims?
Most states have established "second injury"
funds designed to remove financial disincentives in hiring employees
with a disability. Without a second injury fund, if a worker suffered
increased disability from a work-related injury because of a pre-existing
condition, the employer would have to pay the full cost. The second
injury fund provisions limit the amount the employer must pay
in these circumstances, and provide for the balance to be paid
out of a common fund.
Many second injury funds require an employer
to certify that it knew at the time of hire that the employee
had a pre-existing injury. The ADA does not prohibit employers
from obtaining information about pre-existing injuries and providing
needed information to second injury funds. As discussed in Chapter
VI., an employer may make such medical inquiries and require a
medical examination after a conditional offer of employment, and
before a person starts work, so long as the examination or inquiry
is made of all applicants in the same job category. Although the
ADA generally requires that medical information obtained from
such examinations or inquiries be kept confidential, information
may be submitted to second injury funds or state workers' compensation
authorities as required by state workers' compensation laws.
9.6 Compliance with State and Federal Workers'
Compensation Laws
a. Federal Laws
It may be a defense to a charge of discrimination
under the ADA that a challenged action is required by another
Federal law or regulation, or that another Federal law prohibits
an action that otherwise would be required by the ADA. This defense
is not valid, however, if the Federal standard does not require
the discriminatory action, or if there is a way that an employer
can comply with both legal requirements.
b. State Laws
ADA requirements supersede any conflicting
state workers' compensation laws.
For example: Some state workers' compensation
statutes make an employer liable for paying additional benefits
if an injury occurs because the employer assigned a person to
a position likely to jeopardize the person's health or safety,
or exacerbate an earlier workers' compensation injury. Some of
these laws may permit or require an employer to exclude a disabled
individual from employment in cases where the ADA would not permit
such exclusion. In these cases, the ADA takes precedence over
the state law. An employer could not assert, as a valid defense
to a charge of discrimination, that it failed to hire or return
to work an individual with a disability because doing so would
violate a state workers' compensation law that required exclusion
of this individual.
9.7 Does Filing a Workers' Compensation
Claim Prevent an Injured Worker from Filing a Charge Under the
ADA?
Filing a workers' compensation claim does
not prevent an injured worker from filing a charge under the ADA.
"Exclusivity" clauses in state workers' compensation laws bar
all other civil remedies related to an injury that has been compensated
by a workers' compensation system. However, these clauses do not
prohibit a qualified individual with a disability from filing
a discrimination charge with EEOC, or filing a suit under the
ADA, if issued a "right to sue" letter by EEOC. (See Chapter X.)
9.8 What if an Employee Provides False
Information About his/her Health or Physical Condition?
An employer may refuse to hire or may fire
a person who knowingly provides a false answer to a lawful post-offer
inquiry about his/her condition or workers' compensation history.
Some state workers' compensation laws release
an employer from its obligation to pay benefits if a worker falsely
represents his/her health or physical condition at the time of
hire and is later injured as a result. The ADA does not prevent
use of this defense to a workers' compensation claim. The ADA
requires only that information requests about health or workers
compensation history are made as part of a post-offer medical
examination or inquiry. (See Chapter VI.)
X. ENFORCEMENT PROVISIONS
10.1 Introduction
Title I of the ADA is enforced by the Equal
Employment Opportunity Commission (EEOC) under the same procedures
used to enforce Title VII of the Civil Rights Acts of 1964. The
Commission receives and investigates charges of discrimination
and seeks through conciliation to resolve any discrimination found
and obtain full relief for the affected individual. If conciliation
is not successful, the EEOC may file a suit or issue a "right
to sue" letter to the person who filed the charge. Throughout
the enforcement process, EEOC makes every effort to resolve issues
through conciliation and to avoid litigation.
The Commission also recognizes that differences
and disputes about the ADA requirements may arise between employers
and people with disabilities as a result of misunderstandings.
Such disputes frequently can be resolved more effectively through
informal negotiation or mediation procedures, rather than through
the formal enforcement process of the ADA. Accordingly, EEOC will
encourage efforts to settle such differences through alternative
dispute resolution, provided that such efforts do not deprive
any individual of legal rights granted by the statute. (See "Alternative
Dispute Resolution" in Resource Directory Index.)
10.2 Overview of Enforcement Provisions
- A job applicant or employee who believes
s/he has been discriminated against on the basis of disability
in employment by a private, state, or local government employer,
labor union, employment agency, or joint labor management committee
can file a charge with EEOC.
- An individual, whether disabled or not,
also may file a charge if s/he believes that s/he has been discriminated
against because of an association with a person with a known
disability, or believes that s/he has suffered retaliation because
of filing a charge or assisting in opposing a discriminatory
practice. (See Retaliation below.) Another person or organization
also may file a charge on behalf of such applicant or employee.
- The entity charged with violating the ADA
should receive written notification of the charge within 10
days after it is filed.
- EEOC will investigate charges of discrimination.
If EEOC believes that discrimination occurred, it will attempt
to resolve the charge through conciliation and obtain full relief
for the aggrieved individual consistent with EEOC's standards
for remedies.
- If conciliation fails, EEOC will file suit
or issue a "right to sue" letter to the person who filed the
charge. (If the charge involves a state or local government
agency, EEOC will refer the case to the
Department of Justice for consideration of
litigation or issuance of a "right to sue" letter.)
- Remedies for violations of Title I of the
ADA include hiring, reinstatement, promotion, back pay, front
pay, restored benefits, reasonable accommodation, attorneys'
fees, expert witness fees, and court costs. Compensatory and
punitive damages also may be available in cases of intentional
discrimination or where an employer fails to make a good faith
effort to provide a reasonable accommodation.
- Employers may not retaliate against any
applicant or employee who files a charge, participates in an
EEOC investigation or opposes an unlawful employment practice.
10.3 Questions and Answers on the ADA Enforcement
Process
When do the ADA's employment enforcement
provisions become effective?
Charges of discrimination can be filed against
employers with 25 or more employees and other covered entities
beginning July 26, 1992. The alleged discriminatory act(s) must
have occurred on or after July 26, 1992.
Charges can be filed against employers with
15 or more employees beginning July 26, 1994. The alleged discriminatory
act(s) must have occurred on or after July 26, 1994, if the charge
is against an employer with 15 to 24 employees.
Who can file charges of discrimination?
An applicant or employee who feels that s/he
has been discriminated against in employment on the basis of disability
can file a charge with EEOC. An individual, group or organization
also can file a charge on behalf of another person. An individual,
group or organization that files a charge is called the "charging
party."
How are charges of discrimination filed?
A person who feels s/he has been discriminated
against, or other potential "charging party" should contact the
nearest EEOC office. (See Resource Directory listing.) If there
is no EEOC office nearby, call, toll free 1-800-669-4000 (voice)
or 1-800-800-3302 (TDD).
What are the time limits for filing charges
of discrimination?
A charge of discrimination on the basis of
disability must be filed with EEOC within 180 days of the
alleged discriminatory act.
If there is a state or local fair employment
practices agency that enforces a law prohibiting the same alleged
discriminatory practice, it is possible that charges may be filed
with EEOC up to 300 days after the alleged discriminatory
act. However, to protect legal rights, it is recommended that
EEOC be contacted promptly when discrimination is believed to
have occurred.
How is a charge of discrimination filed?
A charge can be filed in person, by telephone,
or by mail. If an individual does not live near an EEOC office,
the charge can be filed by telephone and verified by mail. The
type of information that will be requested from a charging party
may include:
- the charging party's name, address, and
telephone number (if a charge is filed on behalf of another
individual, his/her identity may be kept confidential, unless
required for a court action);
- the employer's name, address, telephone
number, and number of employees;
- the basis or bases of the discrimination
claimed by the individual (e.g., disability, race, color, religion,
sex, national origin, age, retaliation);
- the issue or issues involved in the alleged
discriminatory act(s) (e.g., hiring, promotion, wages, terms
and conditions of employment, discharge);
- identification of the charging party's
alleged disability (e.g., the physical or mental impairment
and how it affects major life activities, the record of disability
the employer relied upon, or how the employer regarded the individual
as disabled);
- the date of the alleged discriminatory
act(s);
- details of what allegedly happened; and
- identity of witnesses who have knowledge
of the alleged discriminatory act(s).
Charging parties also may submit additional
oral or written evidence on their behalf.
EEOC has work-sharing agreements with many
state and local fair employment agencies. Depending on the agreement,
some charges may be sent to a state or local agency for investigation;
others may be investigated directly by EEOC. (See also Coordination
Procedures to Avoid Duplicate Complaint Processing under the ADA
and the Rehabilitation Act, below.)
Can a charging party file a charge on more
than one basis?
EEOC also enforces other laws that bar employment
discrimination based on race, color, religion, sex, national origin,
and age (persons 40 years of age and older). An individual with
a disability can file a charge of discrimination on more than
one basis.
For example: A cashier who is a paraplegic
may claim that she was discriminated against by an employer based
on both her sex and her disability. She can file a single charge
claiming both disability and sex discrimination.
Can an individual file a lawsuit against
an employer?
An individual can file a lawsuit against an
employer, but s/he must first file the charge with EEOC. The charging
party can request a "right to sue" letter from the EEOC 180 days
after the charge was first filed with the Commission. A charging
party will then have 90 days to file suit after receiving the
notice of right to sue. If the charging party files suit, EEOC
will ordinarily dismiss the original charges filed with the Commission.
"Right to sue" letters also are issued when EEOC does not believe
discrimination occurred or when conciliation attempts fail and
EEOC decides not to sue on the charging party's behalf (see below).
Are charging parties protected from retaliation?
It is unlawful for an employer or other covered
entity to retaliate against someone who files a charge of discrimination,
participates in an investigation, or opposes discriminatory practices.
Individuals who believe that they have been retaliated against
should contact EEOC immediately. Even if an individual has already
filed a charge of discrimination, s/he can file a new charge based
on retaliation.
How does EEOC process charges of discrimination?
- A charge of employment discrimination may
be filed with EEOC against a private employer, state or local
government, employment agency, labor union or joint labor management
committee. When a charge has been filed, EEOC calls these covered
entities "respondents."
- Within 10 days after receipt of a charge,
EEOC sends written notification of receipt to the respondent
and the charging party.
- EEOC begins its investigation by reviewing
information received from the charging party and requesting
information from the respondent. Information requested from
the respondent initially, and in the course of the investigation,
may include: specific information on the issues raised in the
charge;
- the identity of witnesses who can provide
evidence about issues in the charge;
- information about the business operation,
employment process, and workplace; and
- personnel and payroll records.
(Note: All or part of the data-gathering portion
of an investigation may be conducted on-site, depending on the
circumstances.)
- A respondent also may submit additional
oral or written evidence on its own behalf.
- EEOC also will interview witnesses who
have knowledge of the alleged discriminatory act(s).
- EEOC may dismiss a charge during the course
of the investigation for various reasons. For example, it may
find that the respondent is not covered by the ADA, or that
the charge is not timely filed.
- EEOC may request additional information
from the respondent and the charging party. They may be asked
to participate in a fact-finding conference to review the allegations,
obtain additional evidence, and, if appropriate, seek to resolve
the charge through a negotiated settlement.
- The charging party and respondent will
be informed of the preliminary findings of the investigation
-- that is, whether there is cause to believe that discrimination
has occurred and the type of relief that may be necessary. Both
parties will be provided opportunity to submit further information.
- After reviewing all information, the Commission
sends an official "Letter of Determination" to the charging
party and the respondent, stating whether it has or has not
found "reasonable cause" to believe that discrimination occurred.
What if the EEOC concludes that no discrimination
occurred?
If the investigation finds no cause to believe
discrimination occurred, EEOC will take no further action. EEOC
will issue a "right to sue" letter to the charging party, who
may initiate a private suit.
What if the EEOC concludes that discrimination
occurred?
If the investigation shows that there is reasonable
cause to believe that discrimination occurred, EEOC will attempt
to resolve the issue through conciliation and to obtain full relief
consistent with EEOC's standards for remedies for the charging
party. (See Relief Available to Charging Party, below.) EEOC also
can request an employer to post a notice in the workplace stating
that the discrimination has been corrected and that it has stopped
the discriminatory practice.
What happens if conciliation fails?
At all stages of the enforcement process,
EEOC will try to resolve a charge without a costly lawsuit.
If EEOC has found cause to believe that discrimination
occurred, but cannot resolve the issue through conciliation, the
case will be considered for litigation. If EEOC decides to litigate,
a lawsuit will be filed in federal district court. If the Commission
decides not to litigate, it will send the charging party a "right-to-sue"
letter. The charging party may then initiate a private civil suit
within 90 days, if desired. If conciliation fails on a charge
against a state or local government, EEOC will refer the case
to the Department of Justice for consideration of litigation or
issuance of a "right to sue" letter.
10.4 Coordination Procedures to Avoid Duplicative
Complaint Processing Under the ADA and the Rehabilitation Act.
The ADA requires EEOC and the federal agencies
responsible for Section 503 and Section 504 of the Rehabilitation
Act of 1973 to establish coordination procedures to avoid duplication
and to assure consistent standards in processing complaints that
fall within the overlapping jurisdiction of both laws. EEOC and
the Office of Federal Contract Compliance in the Department of
Labor (OFCCP) have issued a joint regulation establishing such
procedures for complaints against employers covered by the ADA
who are also federal contractors or subcontractors. (Published
in the Federal Register of January 24, 1992.) EEOC and the Department
of Justice also will issue a joint regulation establishing procedures
for complaints against employers covered by the ADA who are recipients
of federal financial assistance.
The joint EEOC-OFCCP rule provides that a
complaint of discrimination on the basis of disability filed with
OFCCP under Section 503 will be considered a charge filed simultaneously
under the ADA if the complaint falls within the ADA's jurisdiction.
This will ensure that an individual's ADA rights are preserved.
OFCCP will process such complaints/charges for EEOC, with certain
exceptions specified in the regulation, where OFCCP will refer
the charge to EEOC. OFCCP also will refer to EEOC for litigation
review any complaint/charge where a violation has been found,
conciliation fails, and OFCCP decides not to pursue administrative
enforcement.
EEOC will refer to OFCCP ADA charges that
fall under Section 503 jurisdiction when the Commission finds
cause to believe that discrimination has occurred but decides
not to litigate, for any administrative action that OFCCP finds
appropriate. Where a charge involves both allegations of discrimination
and violation of OFCCP's affirmative action requirements, EEOC
generally will refer the charge to OFCCP for processing and resolution.
(Note: Procedures established in an
EEOC-Department of Justice joint rule on processing complaints
that are within ADA and Section 504 jurisdiction will be summarized
in a future supplement to this Manual, when a final regulation
has been issued.)
10.5 Remedies
The "relief" or remedies available for employment
discrimination, whether caused by intentional acts or by practices
that have a discriminatory effect, may include hiring, reinstatement,
promotion, back pay, front pay, reasonable accommodation, or other
actions that will make an individual "whole" (in the condition
s/he would have been but for the discrimination). Remedies also
may include payment of attorneys' fees, expert witness fees and
court costs.
Compensatory and punitive damages also may
be available where intentional discrimination is found. Damages
may be available to compensate for actual monetary losses, for
future monetary losses, for mental anguish and inconvenience.
Punitive damages also may be available if an employer acted with
malice or reckless indifference. The total amount of punitive
damages and compensatory damages for future monetary loss and
emotional injury for each individual is limited, based upon the
size of the employer, using the following schedule:
Number of employees Damages will not exceed
- 15-100 $50,000
- 101-200 $100,000
- 201-500 $200,000
- 500 and more $300,000
Punitive damages are not available against
state or local governments.
In cases concerning reasonable accommodation,
compensatory or punitive damages may not be awarded to the charging
party if an employer can demonstrate that "good faith" efforts
were made to provide reasonable accommodation.
What are EEOC's obligations to make the
charge process accessible to and usable by individuals with disabilities?
EEOC is required by Section 504 of the Rehabilitation
Act of 1973, as amended, to make all of its programs and activities
accessible to and usable by individuals with disabilities. EEOC
has an obligation to provide services or devices necessary to
enable an individual with a disability to participate in the charge
filing process. For example, upon request, EEOC will provide an
interpreter when necessary for a charging party who is hearing
impaired. People with visual or manual disabilities can request
on-site assistance in filling out a "charge of discrimination"
form and affidavits. EEOC will provide access to the charge process
as needed by each individual with a disability, on a case-by-case
basis.
APPENDICES