Disability, Leave The Americans with Disabilities Act (ADA) & Employment Law

  1. This article will provide a general understanding and overview of the Americans with Disabilities Act. You will learn about who it covers, what employers are required to adhere to its standards, the lengths that employers must go to in order to accommodate disabled persons and more.

    What is the Americans with Disabilities Act?

    The ADA (Americans with Disabilities Act) prohibits employers from discriminating against employees on the basis of their disability. This protection for employees covers interviews, hiring, promotions, compensation, benefits and termination. Any employee who tries to assert their rights under the ADA is also protected against any retaliation by the employer.

    Overview of Coverage Under the ADA

    All private employers with 15 or more people employed and all local governments must adhere to the rules and regulations of the Americans with Disabilities Act. The ADA requires that all employers try to make reasonable accommodations available for disabled workers, provided that the accommodations do not cause unnecessary and undue hardship for the employer. The Americans with Disabilities Act specifies what qualifies as a disability, who are the people protected under the ADA, when it is required to provide accommodations and what is meant by an “unnecessary hardship.” With regard to companies who have less than 15 employees, many states have enacted laws that are similar to the protections afforded by the ADA.

    Employees Who Are Covered Under the ADA

    The following employees are protected under the Americans with Disabilities Act:
    • An employee who has a mental or physical disability that greatly affects a major activity of life qualifies for AD protection
    • An employee with a history of having been afflicted with a previous, qualifying disability (employer may not discriminate based upon likelihood of the disability recurring)
    • An employee who is perceived as having a disability (even if an employer is wrong in assuming a disability exists where there is no disability, the employer cannot discriminate against an employee based on the fact that he thinks the employee has a disability)

    Definition of “Disability” under the ADA

    The definition of a disability under the ADA is a mental or physical problem that has a substantial impact on a particular key life activity. Key life activities include general, fundamental actions such as talking, walking, communicating, bending down, as well as normal and customary bodily functions including the bladder, bowels, reproductive functions, digestive systems, normal cell growth, brain and neurological functions and the working order of the immune system. While a disability may limit a person’s ability to perform certain major life activities, it may not qualify as a disability which is protected under the ADA. Temporary ailments are not considered to be disabilities despite their severity.

    Who Qualifies as a Disabled Worker?

    The ADA only protects qualified workers who have a disability. A person who is capable of performing the basic duties of a job either with or without a reasonable accommodation provided by the employer, is considered to be a qualified worker with a disability.

    What is meant by basic duties are the ones that are essential to the position. Secondary duties are not counted. For instance the duties of an employee working in a call center may include answering the phone, drafting correspondence to customers and dealing with customer complaints. When the call center is not so busy, there may be other duties which could be filing, or restocking supplies in the office. While the main duties are considered to be essential parts of the job, the secondary duties probably aren’t.

    What is a “Reasonable Accommodation” to be Made by an Employer?

    There are times when an employer is required to provide a reasonable accommodation to the disabled worker to enable him or her to fulfill his or her duties at work. It is not up to the employer to guess whether or not a reasonable accommodation is required. But once an employer becomes aware of the need, such as an official request for an accommodation from a disabled person who qualifies for ADA protection, it must be provided. If an employee requests a particular accommodation, the employer only has to fulfill that request if it is reasonable and there is no other alternative. If there are measures already in place, an employer is required to discuss the request with the employee about the existing accommodation.

    What is “Unnecessary Hardship” to an Employer?

    If providing a particular accommodation would cause unnecessary hardship to an employer, then the employer does not have to full such a request. The definition of an unnecessary hardship under the ADA is one which would likely cause the business a significant amount of difficulty or expense. There are a number of factors which will determine whether a particular accommodation would cause an unnecessary hardship:
    • The price and nature of the accommodation
    • The financial situation of the business (it is normally easier for a larger more successful company to be able to provide accommodations of greater cost)
    • The size, structure and composition of the business
    • Any costs which have already been incurred by the business for accommodations

    If the price of a particular accommodation would threaten the financial stability of the business either because the company is quite small or because the accommodation cost is so high, then it would probably be deemed to be an unnecessary hardship. For example, providing wheelchair access to the bathrooms in a spacious building might be a reasonable accommodation. Providing a full time nurse for a disabled employee might not be an unnecessary hardship. From studies conducted by the Equal Employment Opportunity Commission, most accommodations will cost under $500, which are usually considered reasonable and simple to implement for most employers.

    If you want to find out more information on what is considered to be a disability then visit the Equal Employment Opportunity Commission’s website (EEOC.) If you would like to find out whether or not you may have a case for disability discrimination against your employer, it is suggested that you have your case reviewed by an experienced employment lawyer.

    Michael Wechsler

    Michael Wechsler
    Michael M. Wechsler is an experienced attorney, founder of TheLaw.com, A. Research Scholar at Columbia Business School and of-counsel to Kaplan, Williams & Graffeo, LLC. He was also an SVP and chief Internet strategist at Zedge.net and legal consultant at Kroll Ontrack, a leading service e-discovery and computer forensics service provider.


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