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Some things to know about the ADA

The Americans with Disabilities Act of 1990 (ADA) makes it unlawful to discriminate against a qualified individual with a disability with respect to conditions, terms or benefits of employment. The ADA requires an employer to provide reasonable accommodations for the known disabilities of any qualified applicant or employee. The ADA was significantly expanded with the ADA Amendments Act of 2008 ("ADAAA"). In the ADAAA, Congress broadly expanded the definition of disability, and signaled that it intends for more employees to be entitled to its nondiscrimination protections and reasonable accommodation requirements.

Therefore, in addition to making good business sense, job accommodations for individuals with disabilities may also be legally required. That is why we seek to partner with all of our customers to help fully satisfy the intent and spirit of the Americans with Disabilities Act (ADA). We look forward to working with you to help resolve issues relating to this important legislation and assist in finding creative solutions to all reasonable accommodations, whether required by the ADA or not. This may include funding or identifying funding to overcome undue hardships to your business.

Please contact us when an employee begins to experience limitations that might require some form of job accommodation.

Commonly asked questions:

Who is protected by the ADA ?

Title I of the ADA protects qualified individuals with disabilities from employment discrimination. All employers with 15 or more employees are subject to this law.

To be protected under the ADA, an individual must (1) have, (2) have a record of, (3) be regarded as having or (4) be associated with someone who has a substantial physical or mental impairment. A substantial impairment is one that significantly limits or restricts a major life activity such as hearing, seeing, speaking, breathing, performing manual tasks, walking, caring for oneself, learning, etc.

The individual with a disability must also be qualified to perform the essential functions of the job.

What is a “reasonable accommodation”?

A reasonable accommodation is any modification or adjustment to a job or the work environment that will enable a qualified applicant or employee with a disability to participate in the application process or to perform essential job functions. Reasonable accommodation also includes adjustments to assure that a qualified individual with a disability has rights and privileges in employment equal to those of employees without disabilities. An employer is not required to make an accommodation if it would impose an undue hardship on the operations of the employer's business.

What is “undue hardship”?

Undue hardship is defined as an “action requiring significant difficulty or expense” when considered in light of a number of factors. These factors include the makeup and cost of the accommodation in relation to the size, resources, nature, and structure of the employer's operation. Undue hardship is determined on a case-by-case basis. Where the facility making the accommodation is part of a larger entity, the structure and overall resources of the larger organization would be considered, as well as the financial and administrative relationship of the facility to the larger organization. In general, a larger employer with greater resources would be expected to make accommodations requiring greater effort or expense than would be required of a smaller employer with fewer resources.

If providing a particular accommodation would create an undue hardship, the employer must try to identify another accommodation that will not pose such a hardship. Also, 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 paying that portion of the cost which would constitute an undue hardship or providing the accommodation. (If the employee is involved in a rehabilitation plan, we can provide assistance with the cost of the accommodation. Our staff may also be able to identify alternative funding sources which might be available.)

What are some of the accommodations applicants and employees may need?

Reasonable accommodations may include granting leaves of absence, including leaves beyond the 12-weeks required under the Family and Medical Leave Act ("the FMLA") or leaves to employees who are not eligible for FMLA leave. Reasonable accommodations may also include permitting an employee to work from home, making existing facilities used by employees readily accessible to and usable by an individual with a disability; restructuring the duties of a job; modifying work schedules; acquiring or modifying equipment; providing qualified readers or interpreters; or appropriately modifying examinations, training, or other programs. Reasonable accommodation also may include reassigning an employee to a vacant position for which he or she is qualified, if the person is unable to do the original job even with an accommodation because of a disability. Employers are not required to lower quality or quantity standards as an accommodation, nor are they obligated to provide personal items such as eyeglasses or hearing aids. Employers also are not required to grant an accommodation that relieves an employee from performing an essential function of his or her job.

When must I consider reassigning an employee with a disability to another job as a reasonable accommodation?

When an employee with a disability is unable to perform his or her present job even with a reasonable accommodation, employers must consider reassigning the employee to an existing position that can be performed either with or without an accommodation. The requirement to consider reassignment applies only to current employees and not to applicants for employment. Employers are not required to create a position or to displace another employee in order to create a vacancy, nor are they required to promote an employee with a disability to a higher-level position. However, if a disabled employee is qualified for an open position that would accommodate his or her disability, employers may not require the employee to compete for the position with others.

Must an employer offer reassignment as a reasonable accommodation even if it does not normally allow any of its employees to transfer from one position to another?

Yes. The ADA requires employers to provide reasonable accommodations to individuals with disabilities, including reassignment, even though these accommodations are not available to others. Therefore, an employer who does not normally transfer employees would still have to reassign an employee with a disability, unless the employer could show that the reassignment would cause an undue hardship. If an employer has a policy prohibiting transfer, it would have to make an exception to that policy and reassign a qualified employee with a disability, unless undue hardship can be proved.

Is an employer's obligation to offer reassignment to a vacant position limited to those vacancies within an employee's office, branch, agency, department, facility, personnel system (if the employer has more than a single personnel system), or geographical area?

No. If the employer has a policy prohibiting transfers from one office, branch, agency, department, facility, personnel system, or geographical area to another, exceptions must be made to accommodate qualified employees with disabilities. The ADA contains no language limiting the obligation to reassign only to positions within an office, branch, agency, etc. Rather, the extent to which an employer must search for a suitable vacant position will be an issue of undue hardship. If an employee is being reassigned to a different geographical area, the employee must pay for any relocation expenses unless the employer routinely pays such expenses when granting voluntary transfers to other employees. If relocation is necessary to allow for returning to work, and the employee is involved in a rehabilitation plan, we will consider assisting the employee with relocation costs.

Does an employer have to notify an employee with a disability about vacant positions, or is it the employee's responsibility to learn what jobs are vacant?

The employer is in the best position to know which jobs are vacant or will become vacant within a reasonable period of time. In order to narrow the search for potential vacancies, the employer, as part of the interactive process, should ask the employee about his or her qualifications and interests. Based on this information, the employer is obligated to inform an employee about vacant positions for which she or he may be eligible as a reassignment. However, an employee should assist the employer in identifying appropriate vacancies to the extent that the employee has access to information about them. If the employer does not know whether the employee is qualified for a specific position, the employer can further discuss qualifications with the employee as they relate to any given position.

An employer should proceed as quickly as possible in determining whether there are appropriate vacancies. The length of this process will vary depending on how fast an employer can search for and identify whether an appropriate vacant position exists. For a very small employer, this process may take one day; for other employers this process may take several weeks. When an employer has completed its search, identified whether there are any current or upcoming vacancies, notified the employee of the search results, and either offered an appropriate position to the employee or informed him or her that no appropriate vacancies exist, the employer has fulfilled its obligation in this regard.

Is it a reasonable accommodation to modify a workplace policy because of an employee disability?

Yes. For example, granting an employee time off from work or an adjusted work schedule as a reasonable accommodation may involve modifying leave or attendance procedures or policies. If a requested accommodation would relieve an employee of "an essential job function" employers do not have to allow it. For example, if a disabled employee requests to work from home as an accommodation, and the employer can show that regular, reliable and predictable attendance in the office is an essential function of the employee's job position, the employer may not have to grant the accommodation request. This is an individualized analysis pursuant to which employers must examine the requested accommodation and the essential job functions of the employee’s position. Further, if an employer has allowed similarly-situated employees to engage in the type of activity requested by the disabled employee (here, working from home), the function may not be deemed essential.

Can I consider health and safety in deciding whether to hire an applicant or retain an employee with a disability?

The ADA permits an employer to require that an individual not pose a direct threat to the health and safety of him or herself or others in the workplace. A direct threat means a significant risk of substantial harm. Employers cannot refuse to hire, nor fire an individual because of a slightly increased risk of harm to him or herself or others or a speculative or remote risk. Further, employers should not base conclusions about risks on stereotypical fears. The determination that an individual poses a direct threat must be based on objective, factual evidence regarding the individual's present ability to perform essential job functions. If an applicant or employee with a disability poses a direct threat to the health or safety of him or herself or others, employers must consider whether the risk can be eliminated or reduced to an acceptable level with a reasonable accommodation.

If an employer has violated the law, what might happen?

Under the ADA, either a disabled employee or the Equal Empowerment Opportunity Commission ("the EEOC") which is the federal agency charged with enforcing the ADA, may bring an action against an employer. Many states also have state disability discrimination laws which authorize lawsuits by disabled employees or enforcement actions by state officials.

Employees who successfully prove that an employer discriminated against them on account of their disabilities and/or refused to provide a reasonable accommodation can recover lost wages and lost “front pay” that were caused by the employer’s unlawful actions. Successful employees can also recover consequential damages, such as damages for emotional distress, attorney’s fees, and, in certain cases, punitive damages. A court or the EEOC may also order an employer to reinstate an employee who is found to have been wrongfully discharged.