The Americans with Disability Act — Part 1: Issues of Compliance for Employers

It is estimated that over 50 million Americans have a disability of some type. Arising from advances in technology and adaptive equipment, the great majority of this population are able to live independently and lead active lifestyles, including full-time employment in a wide variety of occupations.

The Americans with Disability Act (ADA) is Federally-based civil rights legislation that prohibits employers from discriminating against employees having a disability. The ADA applies to both the physical structure of your business, as well as to the policies and procedures your company develops with regard to accommodations for employees with special needs.

Compliance Deadlines

Beginning on March 15, 2011, firms must have implemented a plan to comply with ADA nondiscrimination, including those related to company policy and procedures. The compliance deadline for the 2010 Standards which covered the technical rules regarding building accessibility will be March 15, 2012. This extended date is intended to provide sufficient time for all companies to make the necessary alternations to physical structure.

Who Does the ADA Apply to?

The ADA prohibits job discrimination against people with disabilities by each of the following:

• Private business;
• State and local government agencies;
• Staffing agencies; or
• Labor unions.

Title 1 of the ADA is enforced by the Equal Employment Opportunity Commission (EEOC) which forbids discrimination by:

• All employers, including state and local government agencies that employ greater than 25 employees. Effective as of July 26, 1992.
• All employers, including state and local government agencies that employ greater than 15 employees. Effective as of July 26, 1994.

Employment Practices Covered under the ADA

The ADA prohibits discrimination in such employment functions as:

• Recruitment and hiring;
• Training and Orientation;
• Salary offered and benefits;
• Termination;
• Promotion;
• Job assignments;
• Any other employment-related activity (e.g. attendance at company events or staff retreats).

Under the ADA, it is unlawful for an employer to initiate any sort of retaliatory action against an employee who wishes to claim his or her rights under the ADA. The ADA also prohibits an employer from discriminating against an employee, whether disabled or not, who has a relationship with disabled person who is a family member, friend, or business associate.

Who Does the ADA Protect?

Under Title 1 of the ADA, a person is defined as having a disability who has either a physical or mental impairment which significantly impacts his or her ability to function in major activities of daily life without some type of accommodation. The ADA also protects those individuals who are defined as having a long-term substantial limiting impairment that affects daily life. A major activity of daily life may be defined as hearing, seeing, speaking,walking, manual tasks, caring for self, and working. A limiting disability is that which significantly impacts any of the listed major activities of daily life (e.g. partial vision, hearing loss, knee injury, etc.).

To qualify for protection under the ADA, a person with a disability must be able to perform the essential tasks of a job once reasonable accommodation is made. Under this rule, a job candidate or employee must:

• Meet the job requirements in terms of educational preparation, past experience, skills, knowledge, certifications and licenses and any other qualifications deemed necessary to successfully perform in the role; and
• Have the ability to carry-out those tasks with or without reasonable accommodation being made.

The ADA does not interfere with your hiring process and selecting the best qualified candidate. The ADA is also not going to oversee affirmative action policies. The ADA is solely concerned with preventing your business from practicing discrimination against a disabled job candidate or employee.

Guidelines for Determining Essential Functions

Essential functions may be defined as those job responsibilities an employee must be able to carry-out with or without reasonable accommodations being made. Creation of a job analysis is important in deciding which job tasks are “essential” and which are the “nice-to-haves.” This is an especially important step before you undertake the recruitment of new staff, promote a current employee, or terminate those who are underperforming.

Important factors in determining essential functions include:

• Are the tasks essential to the job? To answer this question think about what percentage of their day employees will spend carrying-out those specific tasks?
• The number of other employees available who may be able to assume all or some of the responsibilities;
• The degree of expertise in terms of skill-set, and knowledge required to satisfactorily perform the task. Highly specialized roles will necessarily limit the number of available employees who can perform the work.

Your conclusions regarding which tasks are considered essential, along with a written job analysis and job description prepared before you recruit, promote, or terminate an employee will be considered by the EEOC as evidence of what constitutes essential functions for that job.

The EEOC will also consider other evidence, such as:

• The actual tasks performed by current and former employees in the role;
• The time spent performing each task;
• The consequences of not performing those tasks in terms of overall productivity;
• The language of any collective bargaining agreements that may be in place.

Click the following link to go to Part 2: Reasonable Accommodation.

by Lisa Ann Burke