However, if an employee refuses to talk about his/her disability or the need for accommodations, guidance from the Equal Employment Opportunity Commission (EEOC) states that employers cannot force employees to request or accept accommodations and employers should treat an employee with a disability of the same way that's not-. An official website of the United States Government Official websites use. gov A. gov belongs to an official government organization in the United States.
Filing a Discrimination Charge Federal Employees & Job Seekers The Americans with Disabilities Act of 1990 (ADA) makes it illegal to discriminate in employment against a qualified person with a disability. The ADA also prohibits discrimination against persons with disabilities in state and local government services, public accommodations, transportation and telecommunications. This booklet explains the part of the ADA that prohibits employment discrimination. This part of the Act is enforced by the U.S.
UU. Equal Employment Opportunity Commission and state and local civil rights enforcement agencies working with the Commission. Because the ADA establishes overlapping responsibilities in both the EEOC and the DOJ for employment by state and local governments, the EEOC and the DOJ will coordinate the federal law enforcement effort to avoid duplication in research and enforcement activities. In addition, since some private and government employers are already covered by the non-discrimination and affirmative action requirements under the Rehabilitation Act of 1973, EEOC, DOJ and the Department of Labor will similarly coordinate the enforcement effort under the ADA and the Rehabilitation Act.
The ADA prohibits an employer from retaliating against an applicant or employee for asserting their rights under the ADA. The Act also makes it illegal to discriminate against an applicant or employee, whether disabled or not, because of the person's family, business, social or other relationship or association with a person with a disability. Title I of the ADA Protects Qualified Individuals with Disabilities from Employment Discrimination. Under the ADA, a person has a disability if they have a physical or mental disability that substantially limits a major activity of life.
The ADA also protects people who have a history of substantially limiting impairment and people who are considered to have a substantially limiting impairment. To be protected by the ADA, a person must have, have a record, or be considered to have a substantial impediment, rather than a minor impediment. A substantial impediment is one that significantly limits or restricts a major life activity, such as hearing, seeing, talking, breathing, performing manual tasks, walking, caring for yourself, learning, or working. The ADA does not interfere with your right to hire the best qualified candidate.
Nor does the ADA impose any affirmative action obligations. The ADA simply prohibits you from discriminating against a qualified candidate or employee because of their disability. Essential functions are the basic work duties that an employee must be able to perform, with or without reasonable accommodations. You should carefully examine each job to determine which functions or tasks are essential to performance.
This is particularly important before taking an employment action (such as recruitment, advertising, hiring, promotion or dismissal). Reasonable accommodation must also be made to allow a person with a disability to participate in the application process and enjoy benefits and employment privileges equal to those available to other employees. It is a violation of the ADA not to provide reasonable accommodation to the known physical or mental limitations of a qualifying person with a disability, unless doing so places an undue hardship on the operation of your business. Excessive hardship means that housing would require significant difficulty or expense.
There is no need to provide a reasonable accommodation if doing so would cause undue hardship. Excessive hardship means that an adaptation would be excessively costly, extensive, substantial or disruptive, or would fundamentally alter the nature or operation of the business. Factors that need to be considered in determining whether accommodation is an undue hardship include the cost of accommodation, the size of the employer, financial resources and the nature and structure of its operation. If a particular accommodation would be an excessive difficulty, you should try to identify another accommodation that does not entail such a difficulty.
If the cost causes undue hardship, you should also consider whether funds for housing are available from an external source, such as a vocational rehabilitation agency, and whether the cost of providing housing can be offset by state or federal tax credits or deductions. You must also give the applicant or employee with a disability the opportunity to provide the accommodation or pay for the portion of the accommodation that constitutes an undue hardship. You can ask a candidate questions about the ability to perform work-related roles, as long as the questions are not worded in terms of disability. You may also ask the applicant to describe or demonstrate how, with or without reasonable accommodation, the applicant will perform work-related functions.
After making a job offer and before the start of work duties, you can require the applicant to undergo a medical examination if all persons who are going to work in the job category must also take the examination. Can condition the job offer on the results of the medical examination. However, if a person is not hired because a medical examination reveals the existence of a disability, he must be able to prove that the reasons for the exclusion are work-related and are necessary for the development of his business. It must also be able to demonstrate that there was no reasonable accommodation that would have made it possible for the person to perform the essential functions of the job.
Once you have hired a candidate, you cannot request a medical exam or ask an employee questions about disability, unless you can demonstrate that these requirements are work-related and necessary for the development of your business. May perform voluntary medical exams that are part of an employee health program. The results of all medical examinations or consultation information about a disability should be kept confidential and kept in separate medical records. You can provide medical information required by state workers' compensation laws to agencies that administer those laws.
Anyone who is currently using drugs illegally is not protected by the ADA and may be denied employment or fired for such use. The ADA does not prevent employers from testing applicants or employees for current use of illegal drugs, or from making employment decisions based on verifiable results. A test for illegal drug use is not considered a medical examination under the ADA; therefore, it is not a medical examination prior to prohibited employment and you will not have to show that the administration of the test is work-related and consistent with business needs. The ADA does not encourage, authorize or prohibit drug testing.
The provisions of the ADA prohibiting employment discrimination will be enforced by the U.S. After July 26, 1992, individuals who believe they have been discriminated against on the basis of their disability may file a complaint with the Commission at any of its offices located throughout the United States. A charge of discrimination must be filed within 180 days of discrimination, unless there is a state or local law that also provides relief for discrimination on the basis of disability. In such cases, the plaintiff has 300 days to file a complaint.
The Commission believes that employers want to comply with the ADA, and that if they are given enough information on how to do so, they will do so voluntarily. As a result, the Commission is carrying out an active technical assistance programme to promote voluntary compliance with the ADA. This program is designed to help employers understand their responsibilities and help people with disabilities understand their rights and the law. In January 1992, the EEOC published a Technical Assistance Manual, which provides practical application of legal requirements to specific work activities, with a directory of resources to assist compliance.
EEOC publishes other educational materials, provides training on the law for employers and persons with disabilities, and participates in meetings and training programs of other organizations. EEOC staff will also respond to individual requests for information and assistance. The Commission's technical assistance programme is independent and distinct from its implementation responsibilities. Employers requesting information or assistance from the Commission will not be subject to any enforcement action due to such consultations.
The Commission also recognizes that differences and disputes over the requirements of the ADA may arise between employers and persons with disabilities as a result of misunderstandings. Such disputes can often be resolved more effectively through informal negotiation or mediation procedures, rather than through the formal ADA enforcement process. Accordingly, the EEOC will encourage efforts to resolve such disputes through alternative dispute resolution, provided that such efforts do not deprive any person of the statutory rights set out in the statute. What is the relationship between the ADA and the Rehabilitation Act of 1973? AT.
The Rehabilitation Act of 1973 prohibits discrimination on the basis of disability by the federal government, federal contractors and recipients of federal financial assistance. If you were covered by the Rehabilitation Act prior to the passage of the ADA, the ADA will not affect that coverage. Many of the provisions contained in the ADA are based on Section 504 of the Rehabilitation Act and its implementing regulations. If you are receiving federal financial assistance and meet Section 504, you are likely to meet the ADA requirements that affect employment, except in those areas where the ADA contains additional requirements.
Your non-discrimination requirements as a federal contractor under Section 503 of the Rehabilitation Act will be essentially the same as those under the ADA; however, you will still have additional affirmative action requirements under Section 503 that do not exist under the ADA. If I have multiple qualified candidates for a job, does the ADA require that I hire the applicant with a disability? AT. You can hire the most qualified candidate. The ADA only makes it illegal for you to discriminate against a qualifying person with a disability on the basis of disability.
One of my employees is diabetic, but he injects insulin every day to control his diabetes. As a result, diabetes does not have a significant impact on your employment. Are you protected by the ADA? AT. Determining whether a person has a disability under the ADA is made without regard to palliative measures such as medication, auxiliary aids, and reasonable accommodations.
If a person has a disability that substantially limits a major activity of life, he or she is protected by the ADA, regardless of the fact that the disease or condition or its effects can be corrected or controlled. One of my employees has a broken arm that will heal, but he is temporarily unable to perform the essential functions of his job as a mechanic. Is this employee protected by the ADA? AT. While this employee has a disability, it does not substantially limit a main activity of life if it is of limited duration and will not have long-term effect.
The employer's obligation to provide reasonable accommodation applies only to known physical or mental limitations. However, this does not mean that an applicant or employee should always inform you of a disability. If a disability is obvious, for example,. How do I determine if a reasonable accommodation is appropriate and what type of accommodation should be available? AT.
The requirement will usually be triggered by a request from a person with a disability, who can often suggest an appropriate accommodation. Accommodations should be made on a case-by-case basis, because the nature and extent of a disabling condition and the requirements of the job will vary. The main test for selecting a particular type of accommodation is that of effectiveness,. It does not need to be the best accommodation or accommodation that the person with a disability would prefer, although the preference of the person involved should be mainly taken into account.
However, as an employer, you have the ultimate discretion to choose between effective accommodations, and you can select one that is less expensive or easier to provide. When should I consider reassigning an employee with a disability to another job as a reasonable accommodation? AT. When an employee with a disability is unable to perform their current job, even with a reasonable accommodation, they should consider reassigning them to an existing position that they can perform with or without a reasonable accommodation. The requirement to consider reassignment applies only to employees and not to applicants.
You don't need to create a position or hit another employee to create a vacancy. You are also not required to promote an employee with a disability to a higher level position. What happens if an applicant or employee refuses to accept an accommodation I offer? AT. The ADA states that an employer cannot require a qualifying person with a disability to accept an accommodation that is not requested or necessary by the person.
However, if a necessary reasonable accommodation is refused, the person may be considered unqualified. If our business has a health spa in the building, does it need to be accessible to employees with disabilities? AT. Under the ADA, workers with disabilities must have equal access to all employment benefits and privileges that are available to employees without disabilities in a similar situation. The obligation to provide reasonable accommodation applies to all non-work facilities provided or maintained by you for your employees.
This includes cafes, lounges, auditoriums, company-provided transportation and advisory services. If making an existing facility accessible would be an undue hardship, you must provide a comparable facility that allows a person with a disability to enjoy benefits and employment privileges similar to those enjoyed by other employees, unless this is an undue hardship. An employer cannot do through a contractual or other relationship what is forbidden to do directly. You will be required to provide a location that is easily accessible and usable by your employee with a disability, unless doing so would create an undue hardship.
What are my responsibilities as an employer to make my facilities accessible? AT. As an employer, you are responsible under Title I of the ADA for making facilities accessible to qualified applicants and employees with disabilities as a reasonable accommodation, unless this causes undue hardship. Accessibility must be provided to allow a qualified applicant to participate in the application process, to allow a qualified person to perform essential work functions, and to allow an employee with a disability to enjoy the benefits and privileges available to other employees. However, if your business is a place of public accommodation (such as a restaurant, retail store, or bank), you have different obligations to provide accessibility to the general public, under Title III of the ADA.
Title III will also require that places of public accommodation and commercial facilities (such as office buildings, factories and warehouses) provide accessibility in new construction or when modifications are made to existing structures. More information on these requirements can be found in the U.S. Department of Justice, which enforces Title III. Under the ADA, can an employer refuse to hire a person or fire a current employee who uses drugs illegally? Q.
Does the ADA cover people with AIDS? AT. Legislative history indicates that Congress intended the ADA to protect people with AIDS and HIV from discrimination. Can I consider health and safety when deciding whether to hire a candidate or retain an employee with a disability? AT. The ADA only requires that you give an employee with a disability equal access to any health insurance coverage you provide to other employees.
For example, if your health insurance coverage for certain treatments is limited to a specific number per year, and an employee, because of a disability, needs more than the specified number, the ADA does not require you to provide additional coverage to meet that employee's health insurance needs. The ADA also does not require changes to insurance plans that exclude or limit coverage for pre-existing conditions. Does the ADA require you to post a notice explaining your requirements? AT. The ADA requires that you post a notice in a format accessible to applicants, employees and members of labor organizations, describing the provisions of the Act.
The EEOC will provide employers with a poster summarizing these and other federal legal requirements for non-discrimination. The EEOC will also provide guidance on how to make this information available in formats accessible to people with disabilities. Employers and employees are required by law to actively participate in accommodation discussions when trying to determine reasonable accommodations. But there is no requirement that an employer accept an employee's preferred accommodation if there is other accommodation that is less expensive or easier to provide, as long as it has the same effect.
Employers should not be too distracted by subjective preferences, as they address what could constitute reasonable accommodations from the ADA, and disabled employees should be aware that if they refuse the reasonable accommodation offered by their employer, they may lose a subsequent ADA lawsuit. Individuals who work for entities covered under Title I of the ADA can file a formal complaint with the federal agency that enforces the ADA, the Equal Employment Opportunity Commission (EEOC). . .
