ADA Disability Accommodation and Discrimination: A Guide for Employers
ADA Overview
Definition of “Disability”
The ADA defines the term “disability” as any physical or mental impairment that substantially limits one or more of an individual’s major life activities. The ADA provides various examples of “major life activities,” including seeing, hearing, eating, sleeping, standing, reading, concentrating, and working. Some disabilities are visible or easily identifiable, while others are not. Some examples of common impairments that qualify as disabilities under the ADA are as follows:
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Blindness
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Deafness or a degree of hearing loss
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Mobility impairments
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Autism
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Intellectual disabilities
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Traumatic brain injuries
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Major depressive disorders
Key ADA Provisions Relevant to Employers
The Act mandates annual training for employees, utilizing resources from OSHA, CDC, and NIOSH. This training seeks to equip workers with the knowledge and skills needed to prevent and respond to workplace violence. The training programs included:
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Non-Discriminatory Hiring and Firing: The ADA prohibits employers from discriminating against individuals with disabilities in any aspect of employment. In particular, the ADA prohibits discriminatory recruitment practices, hiring, promotion and advancement opportunities, compensation decisions, benefits, and firing.
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Discrimination-Free Workplace: The ADA prohibits employers from creating or allowing working environments in which employees are discriminated against on the basis of their disabilities.
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Reasonable Accommodations: Employers subject to the ADA must provide reasonable accommodations for qualified employees with disabilities. This means that employers must make necessary adjustments or modifications to enable employees with disabilities to perform their job duties effectively.
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Inquiring about a Disability: The ADA mandates that employers may not ask employees or prospective employees if they are disabled, even if a disability seems physically apparent. Employers are also prohibited from directly asking employees the degree and nature of their disabilities. Employees and prospective employees are under no obligation to disclose that they are disabled to their employers, unless they are requesting reasonable accommodations.
Employer Responsibilities
Pursuant to the ADA, disability discrimination occurs when an employer treats a qualified individual with a disability unfavorably or unfairly because of that person’s disability. In order to avoid engaging in disability discrimination, employers have certain responsibilities to ensure that disabled employees and prospective employees are treated fairly.
Fair Hiring and Firing Practices
Employers bound by the ADA have a responsibility to implement and follow hiring practices that ensure that qualified people with disabilities have the same opportunity for employment as their non-disabled counterparts. The ADA also prohibits employers from firing a person with a disability on the basis of that disability, and prohibits retaliatory firing of employees who request reasonable accommodations.
ADA-Compliant Workplace
The ADA imposes a responsibility upon employers to refrain from utilizing discriminatory training practices, creating unequal access to promotions and employee benefits, and limiting an employee’s ability to take leave. Employers are also required to maintain a working environment that is free from harassment on the basis of disability.
Reasonable Accommodations
Employers have a responsibility to provide reasonable accommodations to qualified employees with disabilities. Reasonable accommodations refer to adjustments or modifications that enable employees with disabilities to perform their essential job functions. Examples include:
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Modifying work schedules.
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Allowing part-time work.
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Providing assistive technologies.
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Providing a reader or interpreter.
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Modifying training materials and policies
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Adjusting job duties or work environments.
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Making the workplace readily accessible.
ADA-Compliant Hiring Practices
One goal of the ADA is to ensure that qualified job applicants with disabilities are given the same opportunities for employment as all other applicants. With this being said, the ADA does not prevent employers from hiring the most qualified applicant. Rather, it prohibits employers from precluding an applicant solely because of his or her disability.
What is a “Qualified Employee”?
Employees and prospective employees with disabilities are considered to be “qualified” so long as their disabilities do not prevent them from performing essential job functions, with or without reasonable accommodation. Prospective employees with disabilities are still considered qualified, even if their disabilities prevent them from performing duties that are nonessential to the position for which they are applying.
ADA-Compliant Hiring Practices
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Denying Reasonable Accommodations in the Interview Process: Employers are prohibited from denying a prospective employee's request for reasonable accommodation throughout the pre-employment process. Some reasonable accommodations an applicant with a disability might request are captioning on a video call, an American Sign Language interpreter, and large-print interview materials.
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Asking about a Disability: The ADA prevents employers from asking a prospective employee about a disability, even if that disability appears obvious.
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Asking for a Medical Examination: Employers cannot ask prospective employees for medical examinations to determine if they are able to perform job functions. Employers are only able to request medical documentation from the prospective employee’s doctor, and such documentation is extremely limited in scope.
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Denying Employment Based on Disability: Qualified prospective employees with disabilities are entitled to the same opportunities for employment as individuals without disabilities. Because of this, employers are prohibited from denying employment to otherwise qualified candidates solely on the basis of their disabilities.
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The ADA imposes a duty on employers to create and maintain a work environment free from discrimination. The best way to ensure that a workplace is discrimination-free is to take the following steps:
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Create an environment where employees are encouraged to bring discrimination complaints to the attention of management.
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Implement a reporting system for employees that feel that they are being discriminated against, or who have witnessed discrimination against another employee.
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Construct adequate policies and procedures for investigating discrimination claims and assessing their merit.
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Address valid discrimination complaints appropriately, and hold perpetrators of workplace discrimination accountable.
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Determine and provide appropriate redress to employees who were victims of workplace discrimination.
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Document this process from start to finish to ensure that all steps were taken, and in a timely manner.
Maintaining an ADA-Compliant Workplace
Implementing Reasonable Accommodations
Steps for Employers:
In order to be compliant with the ADA, employers should take the following steps when identifying and ultimately implementing reasonable accommodations:
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Identifying the Need for Accommodation: When an employer is made aware of an employee’s disability, it should assess whether that disability necessitates an accommodation. The need for an accommodation is most commonly identified when an employee submits an accommodation request, or when the employee and employer engage in another form of communication whereby the employee discloses the need for an accommodation. The need for a reasonable accommodation can also be made apparent through performance assessments.
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Engaging in the Interactive Process: Employers and employees should engage in an open dialogue to identify appropriate accommodations. This collaborative approach helps in finding effective solutions tailored to the employee's needs.
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Asking for Desired Accommodation: Employers should always ask employees who require reasonable accommodations what type of accommodation they are seeking. The ADA does not require employers to provide the sought-after accommodation if another type of accommodation would impose less hardship on the employer, while achieving the same result.
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Providing the Accommodation: Unless providing a reasonable accommodation would impose an undue hardship on the employer, the accommodation must be provided as soon as possible.
Documenting Accommodation Requests
When handling accommodation requests, employers should document the entire process from start to finish. This means documenting:
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Accommodation Requests: Employee requests for reasonable accommodations should be documented in writing, regardless of whether the request was made in writing or verbally.
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Requests for Medical Records: Though employers are not permitted to request medical records from healthcare providers, directly, to assess an employee’s need for an accommodation, the ADA does permit employers to ask employees to obtain these records themselves, and submit them for review. Requests for medical documentation should be documented in writing, and may only include inquiries for information directly related to a given disability, the employee’s ability to perform essential job functions, and the need for an accommodation.
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The Interactive Process: Oftentimes, much of the dialogue between employees and employers throughout the process of assessing and implementing reasonable accommodations does not occur in writing. However, employers should reduce each step of the interactive process to writing, and maintain these records appropriately.
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Acceptance of the Accommodation: Employers should always require that employees who have been offered reasonable accommodations accept such accommodations in writing. This signifies that the employee is satisfied with the accommodation.
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Implementation of the Accommodation: Once an employer and employee agree upon a reasonable accommodation, the employer should document that the accommodation was implemented in a timely and effective manner.
Common Attacks on Employers
Some of the most common accusations that employees make against employers regarding purported ADA violations are as follows:
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Prospective employee was denied employment on the basis of disability.
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Prospective employee faced disability discrimination in the pre-employment process.
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Employer created, maintained, or allowed a discriminatory work environment.
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Employee was not given equal access to promotions and employee benefits.
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Employee’s request for accommodation was not acknowledged.
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Employee was not provided with reasonable accommodation.
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Employee was provided with an accommodation that was inadequate.
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Employee was fired for requesting reasonable accommodation.
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Employee was fired on the basis of disability.
Avoiding Discrimination Claims
In order to stay ADA-compliant and avoid discrimination claims from prospective, current, and former employees, employers should follow these steps:
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Education: The first step to making sure that your business is complying with all provisions of the ADA is to make sure that all key staff members are educated on the specific requirements imposed. Comprehensive ADA education should be ongoing to ensure that your business is aware of, and posed to comply with, periodic changes in legislation.
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Policies and Procedures: Businesses seeking to comply with the ADA should implement robust policies and procedures that adequately satisfy all of the federallyimposed requirements. These include procedures relating to job applicants with disabilities, the handling of accommodation requests, and steps to address complaints related to disability discrimination.
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Training and Awareness: Carrying out periodic training and awareness initiatives for supervisors and employees is paramount to ensuring all staff members understand the requirements imposed by the ADA and are using their best efforts to abide by them. Appropriate training and awareness techniques include workshops and seminars, online courses and webinars, and consultations with ADA experts.
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Audits and Reviews: Conducting internal ADA compliance audits helps to identify and rectify potential gaps in an employer’s approach. Employers can also utilize external resources to conduct compliance checks and ensure that their approach is comprehensive.
Conn Maciel Carey LLP
ADA compliance is a cornerstone of creating a fair and inclusive workplace. Because of this, employers are encouraged to take proactive steps to understand and implement ADA requirements, and foster an environment where all employees can thrive. Conn Maciel Carey’s national Labor and Employment Practice Group represents employers in all aspects of the employment relationship. This includes employers seeking to become ADA compliant or who need vigorous defense after being charged with violating the ADA. Our services include:
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Defending employers against claims of ADA disability accommodation and discrimination;
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Assisting businesses to navigate the maze of regulations related to employee leaves of absence, including the ADA and other laws that may intersect with and/or affect leaves granted under the ADA leave, such as the FMLA.
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Providing advice and counsel to companies on general ADA compliance throughout all aspects of the employer/employee relationship.