James Severson, Stephen R. Sutter, and Howard R. Rosenberg
On July 26, 1992, employment-related provisions of the Americans with Disabilities Act will take effect for organizations with 25 or more employees. Two years later they will be extended to employers of 15 or more. Part-time and seasonal employees working 20 or more full weeks in the current or preceding calendar year are included in the count determining employer coverage.
Portions of the following were adapted from
articles by James Severson, Attorney, McCutchen, Doyle, Brown & Enersen,
San Francisco, in Personnel Law Update, published by Borgman Associates,
Walnut Creek, California. Another article in the Update by William W. Floyd,
Jr., Attorney, Best, Best &Krieger, Riverside, provided useful information.
The Americans with Disabilities Act (ADA), enacted in 1990, prohibits discrimination against disabled persons who can perform the essential functions of a job with or without reasonable accommodation. Last year the U.S. Equal Employment Opportunity Commission (EEOC) issued its final regulations attempting to clarify the terms "disabled," "essential functions," and "reasonable accommodation." The EEOC also recently published a technical assistance manual to help employers understand ADA requirements.
Disability
A "disabled" person is one who currently has, or has a record of, or is regarded as having a disability-any physical or mental disorder that substantially limits a major life activity, such as walking, seeing, hearing, speaking, or breathing. Temporary, non-chronic impairments that have little or no long-term or permanent impact are usually not to be considered disabilities.
Examples of conditions or attributes that are not ADA disabilities are broken limbs, influenza, left-handedness, pregnancy, current use of illegal drugs, obesity (except in rare circumstances), lack of education, homosexuality, poor judgement, and quick temper. Also excluded from ADA protection are individuals with a "characteristic predisposition to illness or disease." Existence of a disability is to be determined without reference to medications or aids (such as a hearing aid) that may correct for the condition.
EEOC guidelines contain detailed discussion of what makes a condition a disability under ADA. Disabilities that substantially limit life activities are generally presumed to also limit the ability to work. Individuals with back problems that preclude heavy labor, for example, may be considered disabled, even though they can perform many other types of work.
Essential Functions of a Job
If a disabled person can perform the essential functions of a job with modifications or adjustments that the employer can reasonably provide, the employer may not exclude the person from the job because of disability. It is thus important for employers to distinguish the fundamental or "essential" functions of a job from the "marginal" ones. The EEOC guidelines indicate factors to be considered in case-by-case determination of whether a particular function is essential to a job:
The ADA regulations also set out types of evidence that could be weighed in deciding whether a given function is essential to a job:
The content of job descriptions, though useful, is not conclusive. If a job description contains duties that an employee rarely, if ever, performs, they are not likely to be considered essential. But tasks performed infrequently may be considered essential because of their critical value or a lack of available employees to perform them. Although an office employee may spend only a few minutes each day entering into a computer file data on field worker production, this task would be essential to the job if no one else on the ranch had any skill in using the computer.
Reasonable Accommodation
Disabled persons who are otherwise qualified and able to perform essential functions of a job are entitled to "reasonable accommodation," which the EEOC manual 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." Such accommodation is not required if it would cause undue hardship to the employer by imposing excessive cost, disruption, or fundamental alteration of the nature or operation of the business.
Examples of reasonable accommodation are: restructuring a job to transfer marginal functions to others; providing assistants to help perform some aspects of the job; acquiring or modifying tools or equipment; permitting the use of equipment, aids, or services that the employer is not obligated to provide (e.g., a guide dog); and making nonwork areas, including restrooms, accessible.
Modified work schedules to accommodate disabled employees or applicants may provide a weekly variance for medical appointments, permanent assignment to a particular shift, weekend work to replace regular days lost during the week (such as for dialysis treatment), and flexible leave (although paid leave in addition to the normal allowance is not required).
Another form of reasonable accommodation is reassignment to a vacant position with comparable pay and benefits. If a comparable position does not exist, reassignment to a lower rated position may be sufficient. An employer is not required to create a new job or to bump another employee from a job to provide a reasonable accommodation.
The Internal Revenue Service allows a deduction of up to $15,000 per year for expenses associated with removal of barriers to the disabled. Businesses with gross receipts less than $1 million or a full-time workforce not exceeding 30 are also permitted tax credits for certain costs of ADA compliance. These businesses may claim a credit of up to 50 percent of eligible expenditures exceeding $250 but no more than $10,250.
Other Issues
EEOC regulations specifically prohibit employers from making pre-employment inquiries about an applicant's history of workers' compensation claims. Employers may make hiring offers contingent upon results of a medical exam and may conduct pre-employment tests to ascertain that disabled persons can perform a job. Applicants may be asked to describe or demonstrate how they would perform job functions.
Employers may deny employment to a disabled applicant on the grounds that the job presents a safety threat to that person only if an individualized assessment shows "high probability" that he or she cannot perform the job safely.
The EEOC is responsible for enforcing ADA employment provisions. Although the information it has provided thusfar is a step toward enabling employers to comply with the new law, many questions about standards and implementation of the law remain. Most of these issues will probably be resolved in time through litigation. Remedies for ADA violations may include compensatory and punitive damages, back pay, front pay, restored benefits, reasonable accommodation, job offers, and attorney's fees.
Employers are obligated to post ADA notices. A poster, a copy of the
technical assistance manual, and booklets on ADA may be obtained from the
EEOC (see Resources, page 11).
Back to: Contents | LMD Main Page | APMP Home