Disabilities & reasonable accommodation

Disabilities & reasonable accommodation
Authored by Andrew Wampler

Wilson 1bca35f096d56ee718c45bfa7080d4cdc0dac51aa6b2e653b2ea8ce1b527da5a

Introduction to disabilities

and reasonable accommodation

Signed into law on July 26, 1990, the Americans with Disabilities Act (ADA) is the most comprehensive federal civil rights statute protecting the rights of people with disabilities. On January 1, 2009, the Americans with Disabilities Act Amendments Act (ADAAA) revised the ADA. The provisions of the ADA now protect the rights of the estimated 160 million Americans with some form of disability. The ADA is divided into five titles, each addressing a unique area:


  1. employment

     

  2. public services

     

  3. public accommodations

     

  4. telecommunications

     

  5. miscellaneous provisions. 

Title I of the ADA directly affects employers and is the focus of this chapter.

 

ADA Coverage

The ADA applies to all private employers with 15 or more employees, including part time employees. The ADA also applies to all public employers, labor organizations, and employment agencies. The ADA does not apply to employers with fewer than 15 employees, the executive branch of the federal government, private membership clubs, churches, parochial schools, or Native-American reservations. 

Title I of the ADA requires employers to provide qualified individuals with disabilities an equal opportunity to benefit from the full range of employment opportunities available to non-disabled individuals. Specifically, the ADA prohibits employers from discriminating against persons with disabilities who are able to perform the essential functions of a job, either with or without reasonable accommodation. This protection extends to all areas of the employment relationship, including the application process, testing, hiring, training, assignments, evaluations, disciplinary actions, compensation, promotions, leave, benefits, and all other terms, conditions, and privileges of employment.

To be protected under the ADA, an employee must be considered a “qualified individual with a disability.” 

A qualified individual with a disability is a person possesses all of the following:


  • has a disability

     

  • is qualified for the job

     

  • can perform the essential functions of the job either with or without a reasonable accommodation. 

      

Covered Entities

Under the ADA, “covered entity” is an entity that must comply with the law. Under Title I, covered entities include employers, employment agencies, labor organizations, or joint labor-management committees. Under Title II, covered entities include state and local government instrumentalities, the National Railroad Passenger Corporation and other commuter authorities, and public transportation systems. Under Title III, covered entities include public accommodations such as restaurants, hotels, grocery stores, retail stores, and the like, as well as privately owned transportation systems.

Disabilities under the ADA

Given the wide variety of possible disabilities, neither the statute nor the accompanying regulations lists all diseases or conditions that are considered disabilities under the ADA. Rather, the definition of what is a disability is analyzed on a case-by-case basis. An individual with a disability is a person who possesses all of the following:


  • has a physical or mental impairment that substantially limits one or more major life activities

     

  • has a record of such an impairment

     

  • is regarded as having such an impairment

     

  • has a relationship or association with someone with a known disability.

     

A physical or mental

impairment that substantially

limits one or more major life activities

The first step in determining if an individual has a physical or mental impairment that substantially limits one or more major life activities is understanding what is considered an “impairment” under the ADA. The ADA broadly defines the term impairment as any physiological disorder or condition, cosmetic disfigurement, or anatomical loss affecting one or more of the body’s multiple systems, including:


  • special sense organs

     

  • neurological

     

  • musculoskeletal

     

  • respiratory

     

  • cardiovascular

     

  • reproductive

     

  • digestive

     

  • genito-urinary

     

  • hemic and lymphatic

     

  • skin

     

  • endocrine systems.

     

The ADA further defines impairment as any mental or psychological disorder, such as mental retardation, organic brain syndrome, emotional or mental illness, and specific learning disabilities.

Because impairment under the ADA is defined as a physiological or mental disorder, simple physical characteristics, such as eye or hair color, left handedness, or height or weight within a normal range are not impairments. Physical conditions that are not the result of a physiological or mental disorder, such as pregnancy or a predisposition to a certain disease are also not impairments. Similarly, personality traits, such as poor judgment, quick temper, or irresponsible behavior are not considered impairments. Finally, environmental, cultural, or economic disadvantages, such as lack of education or a prison record, are not impairments.

After it is established that an individual has an impairment, the second step is to determine whether that impairment substantially limits that individual. With the passage of the Americans with Disabilities Act Amendments Act (ADAAA) the definitions that should be used during consideration of an employee’s disability changed considerably from the original act.



The ADAAA became effective January 1, 2009. Millions of employees not previously covered under the ADA became covered under the ADAAA. One of the primary changes to the ADA is that consideration of mitigating measures (such as managing a disability through the use of medication or a wheelchair) is largely eliminated. Employers cannot consider the improvements of mitigating measures in determining whether an individual has a disability. The only exception is that eyeglasses and contact lenses can still be considered.

A second change to the ADA was the expansion of the term “disability.” The ADAAA retains the ADA’s basic definition of “disability.” However, it changes the way that the definition is interpreted. 



  • Substantially limits

    "Substantially limits” no longer means either “significantly restricted” or “severely restricted.” While the ADAAA does not provide a definition of substantially limits, the ADAAA does direct the EEOC to revise its regulatory definition of substantially limits. In response, the EEOC has released a Notice of Proposed Rulemaking (NPRM) that has five rules of interpretation:




  1. The focus of ADA cases should be on whether discrimination occurred, not on the definition of “disabled;" whether an impairment substantially limits a major life activity should be “construed broadly,” and the determination of whether someone is disabled should “not demand extensive analysis.”

     

  2. In order to demonstrate that an individual is substantially limited in a major life activity, the individual does not need to demonstrate that he/she is limited in “activities of central importance to daily life.”

     

  3. An individual may be able to demonstrate that he/she is disabled based upon an impairment that substantially limits only one major life activity.

     

  4. The determination of an individual’s limitation “may be made by using a common sense analysis without resorting to scientific or medial evidence” when comparing the individual’s limitation to that of most people in the general population.

     

  5. Impairments that last for fewer than six months may still be substantially limiting.

     

The proposed NPRM provides that temporary, non-chronic impairments of short duration, with no residual effects (such as the common flu or a sprained ankle), do not substantially limit a major life activity and, therefore, are not disabilities.

 



  • Major life activities

    The ADAAA added a definition of “major life activities” to the ADA, which includes a lengthy illustrative list of major life activities such as: 

     

    • caring for oneself, performing manual tasks, seeing, hearing, eating, sleeping, walking, standing, lifting, bending, speaking, breathing, learning, reading, concentrating, thinking, communicating, working

       

    • the operation of a major bodily function, such as a function of the immune system, normal cell growth, and digestive, bowel, bladder, neurological, brain, respiratory, circulatory, endocrine, and reproductive functions.





  • Regarded as having an impairment

    In addition, someone with an impairment can be regarded as having a disability, even without the perception that the impairment limits a major life activity, provided that the impairment is not an impairment with an actual or expected duration of six months or less. The ADAAA includes a provision that makes it clear that if someone is protected under the ADA only because they are regarded as having a disability, no accommodations need to be made to that person.

     

Congress’s clear intent was to provide ADA coverage to more people. The ADAAA requires courts to apply a less demanding standard to determine who is covered.  Congress wants courts to focus on whether discrimination based on a disability occurred. It strongly suggests employers will need to make reasonable accommodations even if employees are able to perform their essential job functions with the aid of medication or devices. 

The inability to perform a specific job is not a disability, but rather the employee must be limited with regard to a major life activity. Therefore, if an individual whose sole job is to type documents develops carpal tunnel syndrome and is no longer able to type, but is not impaired in any other way then he/she is not disabled under the ADA or ADAAA, since  typing is not a major life activity. If, however, the individual is impaired from caring for himself/herself due to carpal tunnel syndrome then he/she is protected under the ADA, since caring for oneself is a major life activity. 

 

A record of such an impairment

The second part of the definition of disability covers persons who have a history of a physical or mental impairment that substantially limits one or more major life activities. This also includes individuals who have been misclassified as having such an impairment. 

Regarded as having such impairment    

This part of the definition protects people who are perceived as having disabilities from employment decisions based on stereotypes, fears, or misconceptions about disability. It applies to decisions based on unsubstantiated concerns about productivity, safety, insurance, liability, attendance, cost of accommodation, accessibility, workers’ compensation costs, or acceptance by co-workers and customers. An individual may be protected under this part of the definition in the following three circumstances:



  1. the individual may have an impairment that is not substantially limiting, but is treated by the employer as having such an impairment



  2. the individual has an impairment that is substantially limiting because of attitudes of others toward the condition

     

  3. the individual may have no impairment at all, but is regarded by an employer as having a substantially limiting impairment.

     

If an employer makes an adverse employment decision based on unfounded beliefs or fears that a person’s perceived disability will cause problems in areas such as those listed previously, and cannot show a legitimate, non-discriminatory reason for the action, that action would be discriminatory under this part of the definition.

 

Having a relationship or association

with someone who has a known disability

The ADA specifically provides that an employer or other covered entity may not deny an employment opportunity or benefit to an individual, whether or not that individual is disabled, because that individual has a known relationship or association with an individual who has a disability.

The term relationship or association refers to family relationships and any other social or business relationship or association. Therefore, this provision of the law prohibits employers from making employment decisions based on concerns about the disability of a family member of an applicant or employee, or anyone else with whom this person has a relationship or association. There are generally three situations in which this provision arises:


  1. When an employee is discriminated against because the disability of a family member may pose an increased expense to the employer. For instance, an individual may not be denied employment because his/her spouse is disabled and is covered by the company health plan.

     

  2. When an individual is considered disabled because of their relationship with a disabled person. For example, if an employee’s spouse or partner is infected with HIV and the employer fears that the employee may also have become infected, the person is considered disabled by association. Likewise, if an employee’s blood relative has a genetic ailment and the employee is likely to develop the disability as well, then the employee is disabled by association.

     

  3. When an employee is distracted or otherwise unable to adequately perform his/her job duties because of the disability of another. For instance, if an employee is somewhat inattentive at work because his/her spouse or child has a disability that requires his/her attention, the employee would be considered disabled by association.

     

This provision of the law prohibits discrimination in employment decisions concerning an individual, whether the individual is or is not disabled, because of a known relationship or association with an individual with a disability. However, an employer is not obligated to provide a reasonable accommodation to a non-disabled individual simply because that person has a relationship or association with a disabled individual. The obligation to make a reasonable accommodation applies only to qualified individuals with disabilities. These individuals may, however, have rights under other federal laws, such as the Family and Medical Leave Act (FMLA). 

 


Conditions that are not disabilities    

Certain impairments and conditions are not considered to be disabilities. These include:



  • current illegal drug use (includes the use of illicit drugs such as cocaine and the unlawful use of prescription drugs)



  • temporary conditions, such as broken limbs, sprains, concussions, appendicitis, influenza, and common colds

     

  • physical characteristics such as height, weight (other than severe obesity), eye color, or hair color that are within normal ranges

     

  • common personality traits such as poor judgment or a quick temper

     

  • most sexual behavior disorders

     

  • others problems such as pyromania, kleptomania, and compulsive gambling. 

     

The EEOC does not consider complication free pregnancies to be disabilities under the ADA because pregnancy is not the result of a physiological disorder. If, however, a pregnant woman is substantially limited in a major life activity due to her pregnancy, she can be considered disabled under the ADA. 

Qualified individuals under the ADA

The ADA does not limit an employer’s ability to establish or change the content, nature, or functions of a job. The employer has the ability to establish what a job is and what functions are required to perform it. The ADA simply requires that an individual with a disability, who is otherwise qualified for a job, be evaluated in relation to the essential functions of the position in the same manner as non-disabled individuals. The ADA defines a qualified individual as one who possesses all of the “requisite skill, experience, education and other job related requirements of the employment position, which such individual holds or desires, and who, with or without reasonable accommodation, can perform the essential functions of such position.” There are two basic steps in determining whether an individual is “qualified” under the ADA:

1.  Determine if the individual meets the necessary prerequisites for the job, such as:


  • education

     

  • skills

     

  • experience

     

  • licenses

     

  • training

     

  • certificates

     

  • job related requirements, such as good judgment or ability to work well with other people.

     

2.  Determine if the individual can perform the essential functions of the job, with or without reasonable accommodation.

The essential functions of the job generally include those duties that are fundamental to the performance of the job. Whether a job duty is an essential function is decided on a case-by-case basis. The following questions will help determine the essential functions of a job:



  • What standards have you set?

    For example, an employer can require typists to type 75 words per minute or a cleaning person to clean 16 rooms a day. Employers are not required to show that the standards are necessary, but may be required to show that all employees are, in fact, held to the performance standards.




  • Are employees actually required to perform tasks that the employer claims are essential?

    An employer may list typing as an essential function of the job, but if the employer has never required someone in the position to type that will indicate that typing is, in fact, not an essential function.




  • Does the position exist to perform a specific task?

    An individual may be hired to proofread documents. The ability to proofread is an essential function since that is the only reason the job exists.




  • How many employees are available to perform the job function?

    If there are a limited number of employees who can perform the job function, it is more likely to be an essential job function.




  • What functions did past employees in the job perform?

    What do current employees in similar jobs do? The experience of those who have actually performed the job in question will highlight the essential job functions of that position.




  • How much time is spent performing the function?

    The more time is spent on a particular function, the more likely it is to be an essential job function. For instance, if an employee spends the vast majority of work time at a cash register, that is evidence that operating the cash register is an essential function of the job.




  • What is the consequence of not performing the job?

    What will happen if the job is not performed? Airline pilots spend a relatively small amount of their time landing planes. But the consequence of not being able to safely land a plane makes that an essential function of the pilot’s job.




  • Was a written job description prepared before advertising or interviewing for the position?

    If the function is listed in the job description, there is a strong possibility that the EEOC or the courts could consider it essential. 




  • Do the functions require special training or expertise?

    Functions that require training or possession of a specialized skill or license are likely to be considered essential.




  • Is there a collective bargaining agreement in place?

    For employers of union workers, the terms of a collective bargaining agreement are relevant to determining the essential job functions of particular positions.

     



Job descriptions can help identify essential job functions. Although the ADA does not force employers to put job descriptions in writing, written job descriptions can help employers set forth the educational background, previous experience, skills, licensures, and other requirements needed to perform a particular job. Written job descriptions can also help employers establish legitimate production standards that apply both to the quality and volume of production and are related to the essential job functions. Finally, written job descriptions also aid employers in determining whether a particular individual is qualified to perform a particular position. In short, a well-crafted, written job description can be the best evidence if a company has to defend against a charge of disability discrimination.

Reasonable accommodations

Disabled persons who are otherwise qualified and able to perform essential functions of a job are entitled to reasonable accommodations, which the EEOC defines as “modification or adjustment to a job, the work environment, or the way things usually are done that enables (a disabled person) to enjoy an equal employment opportunity.”

Reasonable accommodation is required in at least three situations


  1. to allow an employee or job applicant to perform the essential functions of a job

     

  2. in application and testing procedures

     

  3. to permit an employee with a disability to enjoy privileges and benefits that are substantially equivalent to those given to non-disabled employees in similar situations.  This aspect of reasonable accommodation includes access to areas such as lunch and break rooms.  It also guarantees that employees with disabilities can participate in employer-sponsored events, such as picnics and parties. 

     

Employers are only required to accommodate known disabilities, and it is the responsibility of the individual with the disability to make the need for accommodation known to the employer.  This notice does not have to specifically mention the ADA or reasonable accommodation. Rather, it may come from the individual, or his/her family, friends, health professional, or representative. Indeed, EEOC Guidance assumes what most employers understand:  Few applicants or employees will walk into an employer’s office and say “I need a reasonable accommodation under the ADA.” Most individuals will present an employer with a set of facts that may indirectly indicate the need for an accommodation. For instance, an employee may tell a supervisor: “I am having trouble getting to work on time because of the medication I am taking;” or an employee’s doctor may send a note indicating that the employee cannot lift more than 50 pounds. 

Once an individual requests accommodation, an employer must make a reasonable accommodation for known disabilities of the employee or job applicant unless:


  • the accommodation would be an undue hardship

     

  • the accommodation would pose a direct threat to the health or safety of the individual for whom the accommodation is made or others

     

  • the only available accommodation is to transfer the individual to a fully staffed position

     

  • the only available accommodation requires creating a new position for the individual (except in circumstances allowing temporary alternative work).

     

Verification of need

for reasonable accommodation

Where a disability or the need for an accommodation is not obvious, employers may ask for reasonable documentation about the disability and about any functional limitations.  This can be done by obtaining documents from an appropriate healthcare provider or rehabilitation professional. Employers should take care in these situations not to request an employee’s entire medical history or information unrelated to the existence of a disability. An employer may also choose to discuss with the individual the nature of the disability and the need for further information. Finally, an employer may arrange for the individual to see a healthcare or rehabilitation specialist (at the employer’s expense) to determine the nature of the disability. If the need for an accommodation is not obvious and the individual refuses to provide reasonable documentation or information, then there is no entitlement to a reasonable accommodation.

 

Specific accommodations

Specific reasonable accommodations may include, but are not limited to:



  • part time or modified work scheduling



  • job restructuring of non-essential job functions

     

  • reassignment of a disabled individual to a vacant position

     

  • modification or acquisition of equipment or devices, which may include making existing facilities readily accessible to individuals with disabilities

     

  • modification of examinations, training materials, or policies

     

  • providing qualified readers or interpreters, but not including personal items such as glasses and hearing aids

     

  • providing a leave of absence.

     

Each request for accommodation must be analyzed on a case-by-case basis. A reasonable accommodation must always take into consideration two factors:


  1. the specific abilities and functional limitations of a particular applicant or employee with a disability

     

  2. the specific functional requirements and essential functions of a particular job.

     

Interactive process

Both the employer and the employee should be involved in an “interactive process” of identifying the possible accommodations. An employer should consider its resources and financial ability to provide an accommodation, the functional requirements of the job, the functional limitations of the employee, and the potential disruption the accommodation may cause in the place of employment. It is important to remember that the employer is not required to provide the best accommodation or the one requested by the employee.  Rather, the accommodation need only be effective to meet the job related needs of the employee seeking accommodation. Finally, during the process of determining a reasonable accommodation, the employer should record all attempts it makes to accommodate a disabled employee.

Employers should accommodate a current employee by reassignment to a different job only when the employee cannot be accommodated in his/her present position. If the employer does reassign an employee with a disability, the employer may only reassign the employee to an available position. Under no circumstances is the employer required to remove another qualified employee from his/her position in order to reasonably accommodate another employee.

Sometimes the ADA reasonable accommodation obligation conflicts with other obligations mandated in collective bargaining agreements. In unionized employment settings governed by a collective bargaining agreement where job assignments and other conditions of employment are based on seniority, the U.S. Supreme Court has ruled that a requested accommodation that conflicts with that seniority system is not a “reasonable accommodation.”

In other words, a disabled employee with less seniority, who seeks to be reassigned to an available position, cannot displace a non-disabled employee with greater seniority who has already applied for that position.

Additionally, the U.S. Supreme Court ruled that established seniority systems override the reasonable accommodation obligation regardless of whether employees are represented by unions and covered by labor contracts. However, if numerous exceptions had been made in the past or if the seniority system had undergone frequent changes, it may be reasonable to make an exception to the seniority system to accommodate a disabled employee.

 

Undue hardship

An employer is not required to provide a reasonable accommodation where the accommodation would create an undue hardship on the employer. An undue hardship is defined as an action that would create significant difficulty or expense to an employer or would fundamentally alter the nature or operation of the company.

In determining whether an employer experienced an undue hardship, all of the following factors are considered:


  • nature and cost of the accommodation considering the availability of tax credits, deductions, and outside funding

     

  • overall financial resources of the facility or facilities

     

  • whether the affected employer is connected with a larger organization that has additional financial resources

     

  • number of employees working at a specific facility

     

  • overall financial impact of the accommodation on the facility’s expenses, resources, and operation, including whether the accommodation would substantially hinder other employees in accomplishing their respective jobs

     

  • company’s type of business, size, location, and other relevant geographical data

     

  • whether the accommodation will benefit more than one person with a disability

     

  • any disruption the accommodation may cause. 

     

In contrast, the following factors are not considered when determining whether the accommodation would cause an undue hardship on the employer:


  • a comparison of the cost of the accommodation to the salary level of the position (for instance, an accommodation costing $50,000 would not be considered an undue hardship merely because the disabled employee’s salary is $25,000)

     

  • a negative effect on the morale of co-workers, by itself, does not create an undue hardship.

     

Just as the EEOC and the federal courts determine whether to provide a reasonable accommodation on a case-by-case basis, they also determine whether the accommodation would create an undue hardship on a case-by-case basis.

 

Direct threat to health and safety

An employer may also deny accommodation to an individual normally protected under the ADA where an individual poses a “direct threat” to the health and safety of others in the workplace. The U.S. Supreme Court has ruled that an employer may not only consider the health and safety of other employees, but also the health and safety of the employee requesting reasonable accommodation. The direct threat defense only applies in situations where a reasonable accommodation, which would eliminate the risk or reduce it to an acceptable level, is not available.

The EEOC defines a direct threat as a significant risk of substantial harm. In determining whether a direct threat exists, the EEOC and the federal courts examine the employer’s reasonable judgments regarding the following:


  • the duration of the risk

     

  • the nature and severity of the harm

     

  • the likelihood that the potential harm will occur

     

  • the imminence of the potential harm.

     

These factors must be based on objective, factual evidence and cannot be founded on subjective fears or stereotypes regarding the nature or effect of a particular disability. 

 

Light or restricted duty positions

Sometimes an employer may be required to provide a light or restricted duty position for an employee with a disability. It is important to remember that the ADA does not require the creation of a light duty position for a disabled individual or injured employee, unless the heavier duties of the job are marginal functions that are not essential to the job. However, the employer may be obligated to create a light duty accommodation to a disabled employee if the employer has created light duty positions in the past. Furthermore, the ADA prevents employers from eliminating long standing, light duty positions when the position is filled by a disabled employee.

If an employer is considering providing a disabled employee with a light duty position, the employer should first determine whether the light duty assignment will be permanent or temporary. If it is temporary, the employer should next decide how long it will last, explain that to the employee and follow up with the employee regularly to determine whether the light duty assignment is still necessary or appropriate. This is important because employers could lose the ability to eliminate the temporary position if the disabled employee performs duties in that position for a lengthy period of time.

Once an employer places a disabled employee in a permanent light duty position, the employee’s ability to perform the essential functions of the job must be measured in relationship to the light duty position and not to the previous position. Therefore, the employer cannot terminate an employee because he/she is unable to perform the essential functions of his/her previous position if the employee is able to fulfill the essential job functions of the light duty position.

 

Reasonable accommodation obligation

for small employers not covered by the ADA

The Virginians with Disabilities Act (VDA) applies to employers not covered by the ADA. The VDA requires employers to reasonably accommodate known physical and mental impairments of otherwise qualified persons with disabilities, unless to do so would impose an undue burden on the employer.

The factors to be considered in determining whether an accommodation constitutes an undue burden under the VDA include:


  • the nature of the employer’s operation and the composition and structure of the employer's workforce

     

  • the size of the facility where the job is located

     

  • the nature and cost of the accommodation needed and the availability of alternate sources of funding or technical assistance

     

  • the usefulness of the accommodation to other prospective employees

     

  • the safety and health of the person being accommodated, other employees, and the public.

     

The employer has the right to choose among equally effective accommodations.    Accommodations costing more than $500 are presumed to impose an undue burden on employers with fewer than 50 employees, however, the presumption is debatable. Finally, an employer is not required to provide an accommodation when the authority to make such accommodations is precluded under the terms of a lease or otherwise prohibited by statute, ordinance, or other regulations.

 

Sample Reasonable Accommodations Policy

The ADA's effects on the hiring process

Pre-offer

The ADA prohibits an employer from requiring a medical examination before an offer is extended. For more information on ADA laws affecting the pre-offer stage of the hiring process, please refer to Recruiting and hiring.

 

Post-offer inquiries and medical examinations

After an offer of employment has been made, employers may inquire into an individual’s prior sick leave usage, illnesses, diseases, impairments, and general physical or mental health. Post-offer questions do not have to be related to the specific job for which the applicant has applied. However, the post-offer questions must follow a real offer and cannot mask any intent to question the applicant based on a tentative offer of employment.

An employer may only give a medical examination after an offer of employment has been made, but the employment offer can be conditioned upon the applicant’s successfully passing the examination. The EEOC has defined a medical examination as “a procedure or test that seeks information about an individual’s physical or mental impairments or health.” The post-offer medical examination can include a complete medical history and does not have to be job related. In contrast, it is important to remember that medical examinations of current employees must be job related and consistent with business necessity. If disability related inquiries made during a post-offer medical examination yield information about an applicant’s disability, and an employer withdraws a conditional offer of employment based on that information, the decision must be job related and consistent with business necessity.

Even though an employer may require a physical agility test or a physical fitness test before an offer is extended to an applicant, it may not measure an applicant’s physical or biological responses to any such test at the pre-offer stage. For instance, an employer may measure how much an employee can lift or how fast he/she can run at the pre-offer stage. However, the employer may not measure an applicant’s blood pressure or heart rate after performing the task. This would constitute a medical examination and is prohibited by the ADA. 

Depending on whether the tests are intended to - or actually do - determine medical or biological data, psychological examinations may or may not be considered medical examinations under the ADA. For instance, a test that measures whether an applicant has a compulsive disorder or depression is considered a medical examination for purposes of the ADA.

If an employer chooses to administer a pre-employment test, reasonable accommodations must be provided if an applicant requests accommodation or if the employer has reason to believe one is necessary. Under the ADA, employers must give applicants or employees, with impaired sensory, manual, or speaking skills, tests that do not require the individual to use that impaired skill. For instance, employers must give oral, rather than written, tests to individuals with dyslexia. Furthermore, individuals with impaired vision may require a large print, Braille, or sign language accommodation. However, if the employer is measuring a skill necessary to perform an essential job function of the position, the employer is not required to provide an applicant with an alternative method of testing. For instance, where reading is an essential job function, the ADA does not require the employer to provide an oral test format. 

If the need for an accommodation is not obvious, the employer may ask an applicant for documentation from a professional regarding the applicant’s disability, the limitations that accompany that disability, and the need for accommodation for testing purposes. Because employers may only request information necessary for accommodation during testing, it is important that employers specify to the applicant that it is only requesting the information to verify the existence of the disability and the need for accommodation.

 

Drug tests

An employer may test an applicant or employee for current illegal drug use, as this test is specifically exempted from the ADA medical examination restrictions and is allowed at any time. Alcohol tests and tests for legal prescription drugs, however, are considered medical examinations under the act – therefore, an employer is prohibited from administering these tests at the pre-offer stage of employment.  

 

Medical records

Employers must keep the confidential medical information of employees and applicants separate from the individual’s personnel files. Furthermore, employers may only reveal medical information in limited situations to the degree necessary for:


  • managers and supervisors when the information is necessary for reasonable accommodation purposes

     

  • first aid and safety personnel in the event emergency treatment is necessary

     

  • state or federal government offices during an investigation for compliance with the ADA

     

  • insurance purposes.

Other impacts of the ADA

Health benefit plans

While the ADA prohibits employers from discriminating on the basis of disability when employers provide healthcare benefits to their employees, Congress has created a way to shield certain health benefit plans from inspection under the ADA. The determination of whether a health benefit plan is lawful under the ADA involves a two-step analysis.

Step 1

The first issue is whether the employer’s health benefit plan includes a “disability based distinction.” A disability based distinction is a provision in a health benefit plan that singles out a particular disability from coverage. If the provision is not a disability based distinction, it is probably lawful under the ADA. For instance, the ADA has indicated the following benefit distinctions are not disability based and are lawful under the ADA:


  • providing fewer benefits for eye care in comparison to other physical conditions

     

  • providing a lower level of benefits for the treatment of mental conditions in comparison to other physical conditions

     

  • setting limits on, or excluding from coverage entirely, benefits for experimental drugs or elective surgery

     

  • including a preexisting condition clause in the health benefits plan.



Step 2

Secondly, if the health benefit plan includes a disability based distinction, the employer may be able to validate it by showing that the distinction is “bona fide,” such as demonstrating full compliance with reporting and disclosure requirements of the Employee Retirement Income Security Act (ERISA) in developing the benefit plan. Not only must the employer show that the plan is “bona fide,” the employer must also demonstrate that the disability based distinction is not a “subterfuge” to avoid the ADA. An employer can show that a health benefit plan is not a subterfuge by demonstrating that the provision is necessary to keep any unacceptable or drastic change from occurring, either in the health benefit plan’s coverage or in the premium charges for the plan.

 

Substance abuse

Under the ADA, alcoholism and past drug addiction are protected as disabilities. An alcoholic who is otherwise qualified to perform the essential functions of the job with or without accommodation would therefore be protected. An employer may, however, hold an employee who is an alcoholic to the same qualification standards for employment or job performance and behavior as other employees, even if any unsatisfactory performance or behavior is related to the alcoholism. Additionally, an employer can prohibit the use of alcohol on the job. 

An employer may not discriminate against a drug addict who is not currently using drugs and who has been rehabilitated, because of a history of drug addiction. The ADA states that it should not be construed to exclude a qualified individual who:


  • has successfully completed a supervised drug rehabilitation program and is no longer engaging in the illegal use of drugs, or has otherwise been rehabilitated successfully and is no longer engaging in such use

     

  • is participating in a supervised rehabilitation program and is no longer engaging in such use

     

  • is incorrectly regarded as engaging in such use, but is not.

     

While recovering addicts are protected under the ADA, the definition of a “qualified individual with a disability” does not include an individual who “is currently engaging in the illegal use of drugs.” Additionally, employees may be required to follow the Drug Free Workplace Act of 1988 and rules set by federal agencies relating to drug and alcohol use in the workplace regardless of the ADA.

 

Food handling positions

The ADA requires the U.S. Department of Health and Human Services to prepare an annual list of infectious and communicable diseases that are transmitted through food handling. In situations where an individual with a disability has a disease on the list and has either applied for or works in a food handling position, the employer must be sensitive to both the health concerns of others and the needs of the disabled individual. To do this, the employer must determine whether there is a reasonable accommodation that will eliminate the risk of transmitting the disease. If there is no reasonable accommodation, the employer may refuse to assign the individual to a position involving food handling. If the individual is a current employee, the employer must consider reassigning the employee to a vacant position that does not involve food handling.