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AMERICANS WITH DISABILITIES ACT FAQ's

The Americans with Disabilities Act of 1990 (ADA) is the short title of United States Public Law 101-336, 104 Stat. 327 (July 26, 1990), codified at 42 U.S.C. § 12101 et seq., signed into law on July 26, 1990 by President George H. W. Bush.

The ADA is a wide-ranging civil rights law that prohibits, under certain circumstances, discrimination based on disability. It affords similar protections against discrimination to Americans with disabilities as the Civil Rights Act of 1964, which made discrimination based on race, religion, sex, national origin, and other characteristics illegal.

Disability is defined as "a physical or mental impairment that substantially limits a major life activity." The determination of whether any particular condition is considered a disability is made on a case by case basis. Certain specific conditions are excluded as disabilities, such as current substance abusers.

The following are frequently asked questions about the Americans With Disabilities Act:

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What Practices And Activities Are Covered By The Employment Nondiscrimination Requirements?

ANSWER: The ADA prohibits discrimination in all employment practices, including:

  • Job application procedures
  • Hiring
  • Firing
  • Advancement
  • Compensation
  • Training
  • Other terms, conditions, and privileges of employment
  • Recruitment
  • Advertising
  • Tenure
  • Layoff
  • Leave
  • Fringe benefits
  • All other employment-related activities

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Who Is Protected From Employment Discrimination

ANSWER: Employment discrimination is prohibited against "qualified individuals with disabilities." This includes applicants for employment and employees. An individual is considered to have a "disability" if he or she:

  • Has a record of such an impairment
  • Is regarded as having such an impairment
  • Has a physical or mental impairment that substantially limits one or more major life activity

Persons discriminated against because they have a known association or relationship with an individual with a disability also are protected.

The first part of the definition makes clear that the ADA applies to persons who have impairments. These must substantially limit major life activities such as:

  • Seeing
  • Hearing
  • Speaking
  • Walking
  • Breathing
  • Performing manual tasks
  • Learning
  • Caring for oneself

An individual with epilepsy, paralysis, HIV infection, AIDS, a substantial hearing or visual impairment, mental retardation, or a specific learning disability is covered, but an individual with a minor, non chronic condition of short duration - such as a sprain, broken limb, or the flu- generally would not be covered.

The second part of the definition protecting individuals with a record of a disability would cover, for example, a person who has recovered from cancer or mental illness.

The third part of the definition protects individuals who are regarded as having a substantially limiting impairment, even though they may not have such an impairment. For example, this provision would protect a qualified individual with a severe facial disfigurement from being denied employment because an employer feared the "negative reactions" of customers or co-workers.

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Who Is A Qualified Individual With A Disability?

ANSWER: A "qualified individual with a disability" is a person who meets legitimate skill, experience, education, or other requirements of an employment position that he or she holds or seeks, and who can perform the essential functions of the position with or without reasonable accommodation.

Requiring the ability to perform "essential" functions assures that an individual with a disability will not be considered unqualified simply because of inability to perform marginal or incidental job functions. If the individual is qualified to perform essential job functions except for limitations caused by a disability, the employer must consider whether the individual could perform these functions with a reasonable accommodation.

If a written job description has been prepared in advance of advertising or interviewing applicants for a job, this will be considered as evidence, although not conclusive evidence, of the essential functions of the job.

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Does An employer Have To Give Preference To A qualified Applicant With A Disability Over Other Applicants?

ANSWER: No. An employer is free to select the most qualified applicant available and to make decisions based on reasons unrelated to a disability. For example, suppose two persons apply for a job as a typist and an essential function of the job is to type 75 words per minute accurately. One applicant, an individual with a disability, who is provided with a reasonable accommodation for a typing test, types 50 words per minute; the other applicant who has no disability accurately types 75 words per minute. The employer can hire the applicant with the higher typing speed, if typing speed is needed for successful performance of the job.

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When Can An Employer Ask An Applicant To "Self-Identify" As Having A Disability?

ANSWER: Federal contractors and subcontractors who are covered by the affirmative action requirements of section 503 of the Rehabilitation Act of 1973 may invite individuals with disabilities to identify themselves on a job application form or by other pre-employment inquiry, to satisfy the section 503 affirmative action requirements.

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.

A pre-employment inquiry about a disability is allowed if required by another Federal law or regulation such as those applicable to disabled veterans and veterans of the Vietnam era. Pre-employment inquiries about disabilities may be necessary under such laws to identify applicants or clients with disabilities in order to provide them with required special services.

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What Is A Reasonable Accommodation?

ANSWER: 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.

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What Are Some Of The Accommodations Applicants And Employees May Need?

ANSWER: Examples of reasonable accommodation include:

  • Restructuring a job
  • Modifying work schedules
  • Acquiring or modifying equipment
  • Providing qualified readers or interpreters
  • Appropriately modifying examinations, training, or other programs
  • Making existing facilities used by employees readily accessible to and usable by an individual with a disability

Reasonable accommodation also may include reassigning a current employee to a vacant position for which the individual is qualified, if the person is unable to do the original job because of a disability even with an accommodation. However, there is no obligation to find a position for an applicant who is not qualified for the position sought. Employers aren't required to lower quality or quantity standards as an accommodation, or provide personal use items such as glasses or hearing aids.

The decision as to the appropriate accommodation must be based on the particular facts of each case. In selecting the particular type of reasonable accommodation to provide, the principal test is whether the accommodation will provide an opportunity for a person with a disability to achieve the same level of performance and to enjoy benefits equal to those of an average, similarly situated person without a disability. However, the accommodation does not have to ensure equal results or provide exactly the same benefits.

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When Is An employer Obligated To Make A Reasonable Accommodation?

ANSWER: An employer is only required to accommodate a "known" disability of a qualified applicant or employee. The requirement generally will be triggered by a request from an individual with a disability, who frequently will be able to suggest an appropriate accommodation.

Accommodations must be made on an individual basis, because the nature and extent of a disabling condition and the requirements of a job will vary in each case.

If the individual doesn't request an accommodation, the employer isn't obligated to provide one, except where an individual's known disability impairs his/her ability to know of, or effectively communicate a need for, an accommodation that is obvious to the employer.

If a person with a disability requests, but cannot suggest, an appropriate accommodation, the employer and the individual should work together to identify one. There are also many public and private resources that can provide assistance without cost.

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What Are The Limitations On The Obligation To Make A Reasonable Accommodation?

ANSWER: The individual with a disability requiring the accommodation must be otherwise qualified, and the employer must know of the disability. In addition, an employer isn't required to make an accommodation if it would impose an "undue hardship" on the operation of the employer's business.

"Undue hardship" is defined as an "action requiring significant difficulty or expense" when considered in light of a number of factors. These factors weigh the nature 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 a particular accommodation would be 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 that would constitute an undue hardship or providing the accommodation.

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Must An Employer Modify Existing Facilities To Make Them Accessible?

ANSWER: 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 the:

  • Building
  • Work site
  • Needed equipment
  • All facilities used by employees

For example, if an employee lounge is located in a place inaccessible to an employee using a wheelchair, the lounge might be modified or relocated, or comparable facilities might be provided in a location that would enable the individual to take a break with co-workers. The employer must provide such access unless it would cause an undue hardship.

Under Title I, an employer isn't required to make an 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. However, employers should consider initiating changes that will provide general accessibility, particularly for job applicants, since it is likely that people with disabilities will be applying for jobs. The employer doesn't have to make changes to provide access in places or facilities that won't be used by a disabled individual for employment-related activities or benefits.

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Can An Employer Attain Existing Production/Performance Standards For An employee with A Disability?

ANSWER: 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 functions, unless the disability affects the person's ability to perform those 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 but may not exclude an individual with a disability who is satisfactorily performing job-essential functions.

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Can An Employer Consider Health And Safety When Deciding Whether To Hire An Applicant or Retain An Employee With A Disability?

ANSWER: Yes. The ADA permits employers to establish qualification standards that will exclude individuals who pose a direct threat - for example, a significant risk of substantial harm - to the health or safety of the individual or of others, if that risk can't be eliminated or reduced below the level of a direct threat by reasonable accommodation.

But an employer may not simply assume that a threat exists. The employer must establish through objective, medically supportable methods that there is significant risk that substantial harm could occur in the workplace. By requiring employers to make individualized judgments based on reliable medical or other objective evidence rather than on generalizations, ignorance, fear, patronizing attitudes, or stereotypes, the ADA recognizes the need to balance the interests of people with disabilities against the legitimate interests of employers in maintaining a safe workplace

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Are Applicants or Employees Who Are Currently Illegally Using Drugs Covered By The ADA?

ANSWER: No. Individuals who currently engage in the illegal use of drugs are specifically excluded from the definition of a "qualified individual with a disability" protected by the ADA when the employer takes action on the basis of their drug use.

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Is Testing For The Illegal Use of Drugs Permissible Under The ADA?

ANSWER: Yes. A test for the illegal use of drugs is not considered a medical examination under the ADA. Employers may conduct such testing of applicants or employees and make employment decisions based on the results. The ADA doesn't encourage, prohibit or authorize drug tests.

If the results of a drug test reveal the presence of a lawfully prescribed drug or other medical information, such information must be treated as a confidential medical record.

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Are Alcoholics Covered By The ADA?

ANSWER: Yes. While a current illegal user of drugs is not protected by the ADA if an employer acts on the basis of such use, a person who currently uses alcohol is not automatically denied protection.

An alcoholic is a person with a disability and is protected by the ADA if he or she is qualified to perform the essential functions of the job. An employer may be required to provide an accommodation to an alcoholic.

However, an employer can discipline, discharge or deny employment to an alcoholic whose use of alcohol adversely affects job performance or conduct. An employer may also prohibit the use of alcohol in the workplace, and can require that employees not be under the influence of alcohol.

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