The Americans with Disabilities Act (ADA) was passed in 1990 to prevent unlawful discrimination against people with disabilities. In addition to providing governance for employment, housing, and government services, the ADA extends to transportation, communications, and public accommodation. This broad jurisdiction makes it essential for every employer to understand their obligations. Doing so will not only keep you compliant with federal and state regulations, but will ensure your workplace is inclusive for all your current and prospective employees.
Overview: What is the ADA?
Before we dive in on employer obligations, you must first understand what it means to be disabled as defined by law. Under the ADA, “an individual must have, have a record of, or be regarded as having a substantial, as opposed to a minor, impairment. A substantial impairment is one that significantly limits or restricts a major life activity such as hearing, seeing, speaking, breathing, performing manual tasks, walking, caring for oneself, learning, or working.”
To be protected under the ADA, the individual with a disability must also be qualified to perform the essential functions of the job they hold or seek, with or without accommodation. More specifically, this means the applicant or employee must:
- Satisfy your job requirements for educational background, employment experience, skills, licenses, and any other qualification standards that are job related; and
- Be able to perform those tasks that are essential to the job, with or without reasonable accommodation.
Strive for inclusivity
The ADA is designed to help employers find and retain the best people, regardless of their disability status. No employer should reject or dismiss an otherwise qualified candidate/employee simply because they have a disability. To remain fully compliant, you as an employer must be aware of the known physical or mental disability. If the disability is readily apparent, such as a person using a wheelchair, the language of the ADA protects worker rights even if the worker does not overtly mention it themselves.
What disabilities are included in the ADA?
The ADA is extremely detailed, but broadly, official physical and mental impairments range from physiological disorders or conditions, disfigurement, anatomical loss of one or more bodily systems or organs, or any mental or psychological disorder, such as intellectual disability, organic brain syndrome, emotional or mental illness, and learning disabilities. It further covers a wide range of contagious or non-contagious diseases such as cerebral palsy, epilepsy, muscular dystrophy, HIV, cancer, diabetes, and many more. For a more comprehensive listing of disabilities covered under the ADA, we encourage you to review the text of the law, or have a designated staff member do so.
What disabilities are excluded from the ADA?
There are three main categories of exclusions from the ADA that are helpful for employers to understand. While employers may provide worker accommodations for the below conditions, they are not required to do so under the ADA. Further, the ADA expressly excludes these from the legal definition of recognized worker disabilities:
- Sexual behavior disorders, which include transvestism, transsexualism, and gender identity disorders not stemming from physical impairments.
- Compulsive behaviors, including gambling, kleptomania, or pyromania.
- Psychoactive substance use resulting from current use of illegal drugs.
Employer practices covered under the ADA
When you think about the ADA, it may not be readily apparent the wide-reaching employment practices covered under the law. In truth, the ADA applies to nearly all facets of your business including:
- Recruitment and hiring
- Layoffs and firing
- Pay and compensation
- Promotions and job assignments
- All other employment-related activities.
The ADA also makes it illegal to retaliate against employees for asserting rights afforded under the ADA, and forbids discriminating against workers because of their association with a disabled person or family member.
Fostering an accessible workplace
When the ADA was passed, governments were hyper-focused on ensuring those with physical disabilities had the freedom to move about our society unhindered. This often included adding ramps to buildings, updating elevators with braille or spoken controls, and accommodating service animals. But as we now inhabit an increasingly virtual world, employers must broaden their concept of accessibility to include digital accessibility. Beyond ensuring your websites are optimized for the visual and hearing impaired, your internal systems, applications, and dashboards must be accessible as well. For example, if you require employees to log their expenses or vacation requests into particular applications, you must ensure the digital interfaces of those applications are accessible to your disabled workers.
Understanding reasonable accommodation
When discussing employer obligations under the ADA, chief among these is ensuring workers receive reasonable accommodation. But what exactly is “reasonable accommodation”? According to the Equal Employment Opportunity Commission (EEOC):
“Reasonable accommodation is any change or adjustment to a job or work environment that permits a qualified applicant or employee with a disability to participate in the job application process, to perform the essential functions of a job, or to enjoy benefits and privileges of employment equal to those enjoyed by employees without disabilities.”
More specifically, accommodations may include modifying equipment or devices, restructuring the role or schedule, adjusting assessments, exams or training materials, and providing interpreters. Usually, requested accommodations are modest and reasonable, so your first steps should be having a conversation with your candidate or employee. If you have questions thereafter, the EEOC, state and local agencies are good resources to contact.
Refusing reasonable accommodation should only happen in cases where an accommodation qualifies as an “undue hardship.” This occurs when the accommodation is “costly, extensive, substantial, or disruptive, or would fundamentally alter the nature or operations of the business.” But before dismissing a candidate, there are several steps required to ensure your refusal does not violate worker rights. To remain compliant, you must first assess whether the cost for the accommodation could be covered by a government tax credit or program, an outside source, or the employee themselves. If so, these funding sources negate the undue hardship, making accommodation a legal requirement of your business.
ADA protections and requirements vary depending on the stage of employment. As the commitment grows deeper, additional reasonable questions are permitted.
- Prior to Employment: All disability-related questions and examinations are prohibited.
- After conditional offer, before work starts: Disability-related questions and examinations are permitted if required of all employees in the same job category, regardless of disability status.
- After employment begins: Disability-related questions and medical examinations are permitted only if they are job related and consistent with business necessity.
Even prior to employment, however, employers are permitted to ask reasonable questions about a workers’ ability to perform essential job functions, with or without accommodations. This includes asking about prior work experience, skills, education, and certifications. You are even permitted to ask applicants to demonstrate or describe how they would perform tasks during the interview process. What’s not permitted is asking about the existence or severity of a disability, nor personal questions about their health status.
Instead, confine screening questions to assessing a candidate’s ability to perform the job at hand. For example, asking whether someone can walk or stand is impermissible. But asking if they can move 45-pound boxes from one area to another with or without accommodations, is permissible. Instead of asking whether a candidate’s oxygen tank means they take a lot of breaks, ask whether they can work for 3-4 hours at a time without breaks with or without accommodation. In short, confine your questions to assessing skills and qualifications essential for your position.
While probing private medical information is out of bounds, the Act permits employers to ask for documentation proving the employee has a legally covered disability requiring reasonable accommodation. This most likely would include paperwork from a physician. Employers may also ask workers to visit a designated health professional only after determining the documentation they submitted is insufficient. In this case, you as the employer must first communicate why the documentation is insufficient to substantiate the covered disability. Be mindful to limit your document requests to information essential and relevant to assess the worker’s ability to perform their essential job functions. As much as you may be curious, employers are not entitled to unfettered access to employee information.
Enforcement under the ADA happens in several ways, aligning to the nature of the discrimination experienced. The US Department of Justice, Disability Rights Section works to ensure equal opportunity under the ADA, Section 504 provision. This includes enforcement, regulatory, coordination, technical assistance, and mediation programs. Additional agencies fielding ADA complaints include the Equal Employment Opportunity Commission (EEOC), the Department of Transportation, the Department of Housing and Urban Development, and the Civil Rights Division of the Department of Justice. Discrimination complaints can be lodged against private businesses that serve the public, in addition to state and local governments, public hospitals, schools, or government programs.
Understanding Web Accessibility
The Web Accessibility Initiative (WAI) sets strategies and standards to make the web accessible to people with disabilities. According to the WAI, “web accessibility means that websites, tools, and technologies are designed and developed so that people with disabilities can use them.”
The Web Content Accessibility Guidelines, commonly called WCAG 2.0, sets standards in cooperation with organizations around the world, the goal of which is to create a singular standard for societies to follow. WCAG documents how to make web content more accessible to people with disabilities including text, images, and sounds, along with code or markup that defines structure and presentation.
As a company, it’s essential to understand how to make your digital experience accessible, not only for your employees, but for your customers as well. Failure to do so opens your company to legal risk, as disabled people can sue to remedy their digital exclusion. If you think this is far-fetched, think again. Lawsuits against global titans like Netflix, Amazon, Nike, Domino’s, Burger King, and entertainer Beyonce Knowles’ Park Entertainment, show how serious people are about holding corporations accountable for providing equal access to all.
Training Staff on the ADA
From interviewing candidates to web accessibility, there is so much to learn about the Americans with Disability Act. To ensure your company and team remains compliant with ADA requirements, it’s necessary that your people are properly trained. Both in-person and on-demand training can make a world of difference when it comes to understanding your requirements and avoiding pitfalls. Effective training can also help you move beyond the minimum and become an engaged and inclusive employer of choice.
As you begin your training program, be sure to set training goals and then align your training lessons to meet those goals. This step can be easy to miss, but is essential to achieve positive outcomes. Once initial training is complete, include follow-up/ongoing trainings to ensure training is retained. You can also identify metrics for success to enable you to measure effectiveness. If your team isn’t able to recall what they learned, plan for their refresher/remedial needs. Continual vigilance is needed to ensure your team is informed and able to create a welcoming workplace open to all, regardless of disability.
That ADA provides legal protections for people with disabilities so they can pursue employment opportunities without fear of discrimination. The law applies to nearly every facet of business operations, from hiring and promotions, to pay, benefits, and firing. Employers must know and comply with all regulations, understanding the legal definitions of what conditions are and are not covered under the ADA. You must also understand how to navigate candidate screenings and respectfully engage with disabled workers once hired. Failure to do so exposes organizations to enforcement penalties from any number of government agencies including the Department of Justice. To avoid these scenarios, training and education around the ADA is essential, including how to provide reasonable accommodation to workers. Accommodations must extend to the digital sphere, including websites and digital applications used by the public, who likewise have rights under the ADA. While complex, there is much support out there to help companies thrive while creating inclusive workplaces welcoming to those with disabilities.