 |
|
The Americans with Disabilities Act (ADA) prohibits disability
discrimination in employment for employers with 15 or more employees. The
prohibition is far-reaching and covers hiring, firing, and everything in
between, such as promotions, benefits, and harassment in the workplace.
The smallest of businesses are not affected by the ADA because of the 15-employee
threshold for coverage. The ADA does apply, however, to many of the roughly
25 million small businesses in the nation.
Who Is Protected?
The ADA protects three categories of individuals: those with a physical or mental
impairment that substantially limits one or more major life activities (like
sitting, standing, or sleeping); those with a record of such an impairment,
such as a person who had debilitating cancer but is now in remission; and those
who are regarded by employers as having such an impairment, even though the
individuals otherwise are not so impaired as to be “disabled” under
the ADA. Regardless of the category, the ADA protects only persons who are
qualified, that is, they meet job-related requirements and can perform essential
functions for the job, with or without a reasonable accommodation.
Hiring
While an employer can ask an applicant a wide range of questions concerning job
qualifications, the ADA does not allow medical examinations or questions about
disability until the employer has made the applicant a conditional job offer.
An exception is recognized for questions directed to an apparently disabled
applicant about whether a reasonable accommodation will be required.
After a job offer is made, an employer can ask any disability-related
questions and require medical examinations, so long as these requirements
apply to everyone in the same job category. For example, if, during a medical
examination required of all employees in a job involving the use of dangerous
machinery, it is revealed that an applicant has frequent and unpredictable
seizures, the employer can withdraw a job offer to that individual.
Medical Information
Once a person is on the job, the ADA allows required medical examinations or
questions about a disability only where there is a reasonable belief, based
on objective evidence, that a particular employee will not be able to perform
essential job functions or will pose a direct threat because of a medical condition.
As an example, if a normally reliable employee has told her employer that a
new medication she takes makes her lethargic, and she begins to make many mistakes,
the employer can ask her how long the medication can be expected to affect
job performance.
Reasonable Accommodation
The ADA differs from most other employment discrimination laws in imposing an
accommodation duty on employers. If a disabled person needs a reasonable accommodation
in order to apply for, or perform, a job, the employer generally must provide
it unless to do so would create an undue hardship. An undue hardship means
significant difficulty or expense, based on an employer's resources and operations.
Most accommodations are not expensive or burdensome.
A diabetic employee may need regular breaks to eat properly and monitor
blood sugar and insulin levels, or a blind employee may need someone to
read information posted on a bulletin board. If more than one accommodation
will work, the employer may take the option that is less costly or easier
to provide.
In addition to the undue hardship defense, an employer
need not provide an accommodation which:
- assists an individual off the job;
- removes or alters the
essential functions of a job;
- lowers production or performance
standards; or
- excuses violations of rules on good conduct.
Helpful Handbook
The Equal Employment Opportunity Commission, which is charged
with enforcement of the ADA, has issued a new handbook to help small
businesses comply with
the ADA. The handbook provides many examples of factual situations with
which small businesses could be confronted. The ADA primer can be accessed
online
at www.eeoc.gov.
^ top
|
|
|
|
|
