The Americans with Disabilities Act

 THE AMERICANS WITH DISABILITIES ACT

 The Americans with Disabilities Act of 1990 (ADA) covers employment, public accommodations, transportation, and telecommunications; and it affects the employment, training, promotion, compensation, and termination policies of every employer having 15 or more employees. It also affects businesses that provide goods and services to the public.

The ADA borrows the definition of disability from the Rehabilitation Act of 1973, by defining it as (1) "a physical or mental impairment that substantially limits one or more of the major life activities," (2) "a record of such impairment," or (3) "being regarded as having such an impairment."

The ADA excludes

• homosexuality, bisexuality, transvestism, transsexualism, pedophilia, exhibitionism, voyeurism, gender identity disorders not resulting from physical impairments, and other sexual disorders;
• compulsive gambling, kleptomania, and pyromania; and
• individuals using illegal drugs when their employer treats them adversely on the basis of that drug use. Persons suffering from psychoactive substance use disorders also are not protected by the ADA. However, an individual who is engaged in, or has completed, drug rehabilitation and is no longer using drugs is protected under the act.

The ADA protects an employee or job applicant who is able to perform the essential functions of the job, whether the employer makes a "reasonable accommodation" for any disability that the individual may have. The ADA further provides that an employer’s determination of what constitutes the "essential functions" of a job will be given consideration. A written job description prepared before the employer advertises or otherwise seeks applicants for a job will also be considered evidence of the essential functions of a job.

The ADA requires employers to make reasonable accommodations for an employee’s disability. Examples of such accommodations include making existing facilities used by employees readily accessible to and usable by individuals with disabilities as well as job restructuring, part-time or modified work schedules; reassignment to a vacant position; acquisition or modification of equipment or devices; appropriate adjustment or modification of examinations, training materials, or policies; the provision of qualified readers or interpreters; and other similar accommodations for disabled employees.

The ADA was intended to help thousands of disabled persons achieve respect and dignity. However, most claimants are workers with back problems, mental disorders, and neurological illnesses. Under the Americans with Disabilities Act, mental disabilities and physical disabilities are governed by identical legal standards, although the issues surrounding mental disabilities are far more complex and elusive. Whereas a physical disability, such as blindness, may be obvious, a mental disability such as depression, may be exhibited in a vague manner or perhaps not at all.

The ADA, the Federal Rehabilitation Act, and state disability statutes cover people who are "regarded" as having a disability as well as people who actually have one.

Many lawsuits have involved employers who claimed that they fired their employees because of poor work or interpersonal skills and employees who claimed that their problems were due to psychological disabilities. These employees claimed that their employer had to either counsel them or otherwise obtain help for them rather than fire them.

A postal worker won $865,000 for being terminated because he had a "volatile personality" and "generally went out of control"; and his employer was afraid he would become violent. A newspaper editor received a settlement under the ADA for being fired because she threw temper tantrums and locked coworkers in their offices.

A government investigator received a settlement under the ADA because he was fired for not doing any work. He claimed he stopped working because he was depressed and his employer should have accommodated him. A salesman obtained a settlement under the ADA for being fired because he could not follow verbal directions; he claimed he suffered from an "attention deficit disorder."

An in-house legal counsel won $1.1 million after his company refused to "accommodate" his depression by giving him shorter hours, a more supportive boss, and a positive job evaluation. A jury awarded $912,000 to a saleswoman who was fired because her manic- depressive illness caused her to be rude to customers and disrupt sales meetings.

UNDUE HARDSHIP

The ADA provides employers with the defense of undue hardship, which is defined as "requiring significant difficulty or expense." The following criteria are used to establish this defense:

• The size of the business
• The size of its budget
• The nature of its operation
• The number of its employees
• The composition and structure of its workforce
• The nature and cost of the accommodation

A large or wealthy employer would be required to spend more money or to undertake a greater effort to accommodate an individual’s disability than would a smaller company. The ADA prohibits discrimination on account of disability in the following areas of employment:

• Hiring
• Promotions and transfers
• Training
• Compensation
• Fringe benefits
• Layoffs
• Terminations

   

The following actions constitute unlawful discrimination:

• Classifying or segregating disabled employees or job applicants in such a way that their employment or promotional opportunities are different from those of able-bodied employees
• Requesting or permitting an employment agency, executive recruiter, union, or provider of insurance or other fringe benefits to discriminate against its applicants or employees
• Using job placement tests or standards that may not have the purpose or effect of discriminating against an employee or applicant who is disabled but in fact do discriminate
• Refusing to hire someone who lives with a disabled relative or whose spouse or child is disabled
• Refusing to make reasonable accommodations to assist a disabled employee or an applicant unless it would cause an undue hardship
• Using employment tests or criteria that tend to screen out disabled applicants unless the test is job related and there is a business necessity for it
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DRUGS AND ALCOHOL INTHE WORKPLACE

The ADA permits an employer to

• fire or refuse to hire an individual who is a current user of illegal drugs;
• ban all employees from using alcohol or illegal drugs in the workplace;
• require employees not to be under the influence of alcohol or illegal drugs in the workplace;
• require employees to conform to the requirements of the Drug-Free Workplace Act;
• hold alcoholic or drug-addicted employees to the same standards as all other employees even if their unsatisfactory job performance is caused by their drug addiction or alcoholism;
• test employees for drug use (a drug test is not considered a medical examination see Chapter 11); and
• require employees to comply with Department of Defense, Nuclear Regulatory Commission, and Department of Transportation drug policy and testing regulations.

However, an employee is protected as "an individual with a disability" when he or she has completed a drug rehabilitation program and is not a current user of drugs; is currently undergoing a drug rehabilitation program and is not a current user of drugs; is erroneously perceived as a drug user but in fact is not engaging in drug use; or is an alcoholic, unless posing a direct threat.

MISCELLANEOUS PROVISIONS

The ADA requires the posting of notices, according to The Civil Rights Act of 1964, that are provided by the Equal Employment Opportunity Commission. The ADA does not preempt other federal, state, or local laws providing equal or greater protection to the disabled. The ADA does not prohibit employers from implementing policies that limit or prohibit smoking in the workplace.

The ADA prohibits an employer from retaliating against an individual who opposes any unlawful practices or who participates in a proceeding brought under the ADA. Attorney fees may be awarded to prevailing parties.

HOW TO COMPLY WITH THE ADA

Following are ten actions employers should take to comply with the ADA:

1. Develop job descriptions. Employers should identify job prerequisites (appropriate educational background, employment experience, skills, licenses, or other job-related requirements for the position) and essential functions to determine whether an individual is qualified to perform an essential job function, with or without a reasonable accommodation. The job description should be prepared before advertising a job or interviewing candidates. Identify the essential and nonessential job functions and prepare descriptions that may serve as evidence of your nondiscriminatory intent.
2. Review employment applications. Employment applications should be examined to ensure that they comply with federal and state laws. Insert questions about the company’s prerequisites (e.g., education and certifications required). Questions should be deleted if they address an applicant’s disability status, health, past medical problems, and workers’ compensation claims. Specific job-related questions should be used to help determine whether applicants can perform the essential functions of the job. A statement should be added to the employment application informing job applicants that the employer encourages applications from qualified individuals with disabilities.
3. Review employment tests and other selection criteria. Employers may not use an employment test that tends to screen out individuals with disabilities unless the test is shown to be job related for the position and consistent with business necessity. The company must also select and administer employment tests in a manner that ensures they accurately reflect the skills, aptitudes, or other factors that the test is designed to measure rather than impaired sensory, manual, or speaking skills of the applicant.
4. Review preemployment drug-testing procedures. Applicants may be required to take a drug test before a job offer is made. The sole purpose of the test must be to detect the use of illegal drugs and it must comply with federal, state, or local laws regarding quality control, confidentiality, and rehabilitation.
5. Review medical examination procedures. The use of preemployment medical examinations before a job offer is made is prohibited. Employers may require physical examinations of an applicant after the offer of a job has been made if (1) all applicants are examined regardless of any disability; (2) the results of those examinations are collected and maintained on separate forms and are kept in separate, confidential files; (3) examination results are not used for any purpose prohibited by the ADA; (4) supervisors, managers, and safety/first-aid personnel are advised of the disability and of any required restrictions or accommodations that must be made; (5) an employer demonstrates that the medical examination was job related and that there was a business necessity for it; and (6) an employer inquires whether an employee or applicant is able to perform a job-related function (e.g., lifting heavy objects or operating complex machinery).
6. Train employees. Employees of all levels should be sensitized to working with disabled people. Special orientation and training programs should be designed for new employees with disabilities.
7. Safety programs. Review safety procedures and practices, especially for employees with disabilities. Design emergency drills with disabled employees in mind.
8. Revise the personnel policies manual. A neutral policy should be drafted concerning attendance and lateness. Make certain these policies are communicated to the employees and uniformly enforced. Develop part-time or modified work schedules to help accommodate all employees. Draft objective interview and discipline forms indicating why an individual was hired, disciplined, or demoted.
9. Disability compliance procedures. A written policy should be distributed to all employees. The policy statement should explain the company’s commitment to adhere to and enforce its obligations under the ADA and other nondiscrimination laws. Emphasize that all employees are expected to help implement the goals of the company. Establish a procedure whereby job applicants and employees can file complaints if they feel there has been discrimination on the basis of disability.
10. Identify the barriers to job performance resulting from a particular disability. Assess the reasonableness of each accommodation in terms of effectiveness, equal employment demands, and employer hardship. Implement the accommodation that is most appropriate and causes the least hardship to the company.
11. Review contracts. All contracts with employment agencies, organizations providing fringe benefits and training, and insurance companies should be reviewed to ensure nondiscriminatory terms and language.

HOW THE ADA AFFECTS WORKERS’ COMPENSATION

If a worker is eligible for workers’ compensation, does this mean he or she automatically has a disability for purposes of the Americans with Disabilities Act?

No. Many injuries that qualify for workers’ compensation are not serious enough to make someone disabled for purposes of filing an ADA claim. Injured workers are disabled under the ADA only if their injury makes them "substantially limited in a major life activity" such as working, walking, or breathing.

However, the ADA also covers workers whose company perceives them as disabled. Therefore, even if workers aren’t injured seriously enough to be disabled, they might still be covered if their employer discriminates against them because of the impairment, such as by refusing to let them come back to work.

Can job applicants be asked if they have filed workers’ compensation claims in the past?

No. However, after a company has made a job offer, it can ask for limited information about past on-the-job injuries so long as it has a legitimate need for the information and asks the same questions of all new employees in similar jobs.

Can workers sue under the ADA if they are fired for taking a leave after filing a compensation claim?

Maybe. Workers would have to show they are disabled and that being given a short-term leave would be a reasonable accommodation.

Can a company give a medical exam to workers who file a comp compensation claim?

Yes. A company can require a medical exam or ask questions about an on-the-job injury to find out what benefits workers should get or determine if they are healthy enough to return to work.

However, if a company asks for more information than it needs to process a claim or forces a worker to have many exams or repeatedly answer the same questions, this may be "disability-based harassment" under the ADA.Can a company refuse to hire because an applicant has filed compensation claims in the past or because hiring this applicant will result in higher compensation costs?

No. However, a company can refuse to hire people who are so likely to injure themselves that they pose a direct threat to the workplace.

If a company provides light-duty jobs for workers who are injured on the job, must it also offer them to workers who are disabled for other reasons?

If a company creates these jobs on a case- by-case basis, it doesn’t have to offer them to workers whose disabilities are not work related. However, if a company holds open a certain number of light-duty jobs to give to workers who are injured on the job, it must also offer them to other disabled workers.

If injured workers take workers’ compensation leave, can the company refuse to let them return to work until they are ready for a full- duty job?

No. If workers are disabled under the ADA, the company must allow them to return to work as soon as they can perform the essential functions of the job with reasonable accommodation.

Even though workers are permanently disabled according to a workers’ compensation board, must the company give them their job back?

Yes, so long as they can do the job with reasonable accommodation. For example, workers who have become blind or lost the use of their legs may be permanently disabled for purposes of receiving compensation benefits but can still sue under the ADA if they can perform the essential functions of the job with reasonable accommodation.

PUBLIC ACCOMMODATIONS ANDCOMMERCIAL FACILITIES

The ADA requires developers, management companies, landlords, and tenants to provide disabled individuals with physical accessibility to commercial facilities (e.g., office buildings, factories, and warehouses) and places of public accommodation (e.g., restaurants, theaters, and retail establishments).

Existing public accommodations must be retrofitted to remove barriers to disabled accessibility and must provide auxiliary aids (e.g., braille print) if it is readily achievable or can be easily accommodated or carried out without much difficulty or expense. Commercial facilities are subject to the ADA’s accessibility requirements only when the facility is a new construction or when an existing building undergoes alterations, renovations, remodeling, historic preservation, or structural changes that affect the usability of the building.

Readily achievable barrier removal in public accommodations may include the following:

• Installing ramps and making curb cuts in sidewalks and entrances
• Repositioning shelves and telephones
• Rearranging tables, chairs, display racks, vending machines, and other furniture
• Adding raised markings on elevator control buttons
• Installing flashing alarm lights
• Widening doors or installing offset hinges to widen doorways
• Eliminating a turnstile or providing an alternative accessible path
• Installing accessible door hardware
• Installing grab bars in toilet stalls
• Rearranging toilet partitions to increase maneuvering space
• Insulating lavatory pipes under sinks to prevent burns
• Installing a full-length bathroom mirror
• Repositioning the paper-towel dispenser in a bathroom
• Creating designated accessible parking spaces
• Installing an accessible paper-cup dispenser at an otherwise inaccessible water fountain
• Removing high-pile, low-density carpeting
• Installing vehicle hand controls

Because both landlords and tenants are equally responsible for compliance with the ADA’s accessibility requirements, landlords should protect themselves from being fined for noncompliance and having to pay for alterations by using lease clauses that provide the following:

• The tenant is responsible for any alterations that may trigger compliance requirements and for complying with the Americans with Disabilities Act and all federal, state, and local laws.
• The landlord is permitted to enter the leased space to make any alterations that the tenant has neglected to make in order to comply with the ADA.
• The tenant will hold the landlord harmless and indemnify him or her for loss, damage, or attorney fees for the tenant’s failure to comply with federal, state, and local laws.

When purchasing commercial property, buyers should protect themselves by (1) using contract clauses that provide for a feasibility study by an architect or engineer to determine whether barriers to accessibility have been removed and whether such removal is readily achievable; (2) examining current leases to determine whether they allocate responsibility for compliance with the ADA between the landlord and tenant; and (3) obtaining a warranty by the seller that the building complies with the Americans with Disabilities Act and all federal, state, and local laws.

Private individuals may bring lawsuits to stop discrimination. Individuals may also file complaints with the U.S. attorney general, who is authorized to bring lawsuits in cases of general public importance or where a "pattern or practice" of discrimination is alleged. In these cases, the attorney general may seek monetary damages and civil penalties. Civil penalties may not exceed $50,000 for a first violation or $100,000 for any subsequent violation.

The Internal Revenue Code allows a deduction of up to $15,000 per year for expenses associated with the removal of qualified architectural and transportation barriers. Small businesses may receive a tax credit for certain costs of compliance with the ADA. An eligible small business is one whose gross receipts do not exceed $1 million or whose workforce does not consist of more than 30 full-time workers. Qualifying businesses may claim a credit of up to 50 percent of eligible access expenditures that exceed $250 but do not exceed $10,250. Examples of eligible access expenditures include the necessary and reasonable costs of removing architectural, physical, communications, and transportation barriers; providing readers, interpreters, and other auxiliary aids; and acquiring or modifying equipment or devices.

IRS Form 8826-Disabled Access Credit. Eligible small businesses use this form to claim the disabled access credit, which is part of the general business credit