This week marks 25 years since Congress passed the Americans with Disabilities Act (ADA). I thought it would be a good time for a little refresher about what ADA means for you as a business owner.
The Americans with Disabilities Act of 1990 prohibits “private employers, state and local governments, employment agencies and labor unions from discriminating against qualified individuals with disabilities in job application procedures, hiring, firing, advancement, compensation, job training, and other terms, conditions and privileges of employment.”
An individual with a disability is defined as a person who has a physical or mental impairment that substantially limits one or more major life activities; has a record of such impairment; or is regarded as having such an impairment. ADA applies to both visible and invisible disabilities.
A “qualified employee or applicant with a disability” is someone who, with or without reasonable accommodation, can perform the essential functions of the job.
The law covers employers with 15 or more employees and requires that covered employers make a reasonable accommodation to the known disability of a qualified applicant or employee. A “reasonable accommodation” is an adjustment or modification that enables the employee with a disability to work without causing “undue hardship” to the employer’s business. “Undue hardship” refers to an action that is considered too difficult or expensive relative to the employer’s “size, financial resources, and the nature and structure of its operations.” It’s important to note here that accommodations are based on individual needs and may differ from person to person, even when two people have the same disability.
In California, the Fair Employment and Housing Act (FEHA) provides greater protection for employees with disabilities than the ADA. FEHA requires that employers with 5 or more employees provide reasonable accommodation for individuals with disabilities. Under FEHA, a person is considered disabled if he or she is “limited” in one or more major life activities. ADA uses “substantially limited” in their definition. Under both the ADA and FEHA, AIDS and HIV-positive status are considered protected disabilities. In 2012, California adopted Amended Disability Regulations that prohibit discrimination based on perceived disabilities or perceived potential disabilities. The new regulations also require accommodation for the residual effects of disabilities and provide guidance regarding the interactive process and medical documentation.
Determining the appropriate accommodation should be an interactive process between employer and employee. In general, an employer does not have to provide a reasonable accommodation unless an individual with a disability has asked for one. Examples of reasonable accommodation include: improving workspace accessibility, modifying work schedule, and providing qualified readers or interpreters.
The ADA restricts employers from asking job applicants about disabilities. The employer may ask the applicant about their ability to perform specific job functions and may, if they do so for all applicants, condition a job offer on the results of a medical examination.
If you’d like to learn more about ADA, please consider signing up for my workshop this October. I will be conducting a 3-day Certificate Program in FMLA & ADA Compliance, Monday, October 5 through Wednesday, October 7, 2015 in Santa Clara. To register, please click here. Register by September 9, 2015 for the early bird discount.