The U.S. Equal Employment Opportunity Commission

The Americans with Disabilities Act:
A Primer for Small Business

Notice Concerning The Americans With Disabilities Act Amendments Act Of 2008

The Americans with Disabilities Act (ADA) Amendments Act of 2008 was signed into law on September 25, 2008 and becomes effective January 1, 2009. Because this law makes several significant changes, including changes to the definition of the term "disability," the EEOC will be evaluating the impact of these changes on this document and other publications. See the list of specific changes to the ADA made by the ADA Amendments Act.

Table of Contents


What Is the ADA?

Who Is Protected by the ADA?

What Does the ADA Require an Employer to Do?

Hiring Do's and Don'ts - Pre-Job Offer

Hiring Do's & Don'ts - Post-Job Offer

Getting Medical Information From Employees


Reasonable Accommodation and Undue Hardship

Procedures for Providing Reasonable Accommodation

Types of Reasonable Accommodations

Safety Concerns

Drug & Alcohol Use

What to Do if a Charge Is Filed Against Your Business

APPENDIX A - Federal Tax Incentives to Encourage the Employment of People with Disabilities and to Promote the Accessibility of Public Accommodations

APPENDIX B - Information on Reasonable Accommodations

APPENDIX C - Finding Qualified Workers with Disabilities


Small businesses are an ever-increasing source of jobs, many of which can be filled by individuals with disabilities who are able and want to work. The approximately 25 million small businesses in the nation represent 99.7 percent of all employers, employ more than 50 percent of the private work force, and generate more than half of the nation's gross domestic product.(1) Small businesses also provide 67 percent of all first jobs. Unfortunately, the unemployment rate of individuals with disabilities remains high. By some estimates, more than 70% of individuals with severe disabilities are not working, even though many of them are willing and able to do so. President Bush's New Freedom Initiative seeks to partner with small businesses to increase the percentage of individuals with disabilities in the workplace.

While the Americans with Disabilities Act (ADA) applies to all businesses with 15 or more employees, this handbook is intended primarily for businesses with 15 to 100 employees and smaller businesses expecting to expand to have at least 15 employees in the near future. It will provide you with an easy-to-read, overview of the basic employment provisions of the ADA as they relate to employees and job applicants.

What is the ADA?

The ADA is a federal civil rights law designed to prevent discrimination and enable individuals with disabilities to participate fully in all aspects of society.

*Practice tip: The Equal Employment Opportunity Commission (EEOC) enforces the employment provisions of the ADA. The EEOC is headquartered in Washington, DC and has offices throughout the United States, including Puerto Rico. If you have any questions concerning the EEOC or the ADA, please

Who is protected by the ADA?

The ADA applies to a person who has a physical or mental impairment that substantially limits one or more major life activities (like sitting, standing, or sleeping).

The ADA also protects a person with a record of a substantially limiting impairment.

Example: A person with a history of cancer that is now in remission may be covered.

And the ADA protects a person who is regarded (or treated by an employer) as if s/he has a substantially limiting impairment.

The ADA only protects a person who is qualified for the job s/he has or wants.

*Practice tip: Employers do not have to hire someone with a disability over a more qualified person without a disability. The goal of the ADA is to provide equal access and opportunities to individuals with disabilities, not to give them an unfair advantage.

What does the ADA require an employer to do?

Employers covered by the ADA have to make sure that people with disabilities:

*Practice tip: Harassing someone because of a disability is just as serious as harassing someone because of race, sex, religion, or national origin. If an employee complains to you that s/he is being harassed because of a disability, respond to the complaint right away by conducting an appropriate investigation and, if necessary, taking action to correct the situation.

As discussed in the sections that follow, the ADA also limits the kinds of medical information that you can get from a job applicant or employee and requires you to provide reasonable accommodations to the known limitations of qualified individuals with disabilities.(2)

Hiring Do's and Don'ts - Pre-Job Offer

Basic rule: The ADA does not allow you to ask questions about disability or use medical examinations until after you make someone a conditional job offer.

*Practice tip: Focus application and interview questions on non-medical job qualifications. An employer may ask a wide range of questions designed to determine an applicant's qualifications for a job.

Examples of what you can ask:

Examples of what you can't ask:

Where it seems likely that an applicant has a disability that will require a reasonable accommodation, you may ask whether s/he will need one. This is an exception to the usual rule that questions regarding disability and reasonable accommodation should come after making a conditional job offer.

Example: During a job interview, you may ask a blind applicant interviewing for a position that requires working with a computer whether s/he will need a reasonable accommodation, such as special software that will read information on the screen.

Hiring Do's & Don'ts - Post-Job Offer

Basic rule: After making a job offer, you may ask any disability-related questions and conduct medical examinations as long as you do this for everybody in the same job category.

*Practice tip: You may withdraw an offer from an applicant with a disability only if it becomes clear that s/he cannot do the essential functions of the job or would pose a direct threat (i.e., a significant risk of substantial harm) to the health or safety of him/herself or others. Be sure to consider whether any reasonable accommodation(s) would enable the individual to perform the job's essential functions and/or would reduce any safety risk the individual might pose.

Examples of what you can do:

Example of what you can't do:

Getting Medical Information from Employees

Once a person with a disability has started working, actual performance, and not the employee's disability, is the best indication of the employee's ability to do the job.

Basic rule: The ADA strictly limits the circumstances under which you may ask questions about disability or require medical examinations of employees. Such questions and exams are only permitted where you have a reasonable belief, based on objective evidence, that a particular employee will be unable to perform essential job functions or will pose a direct threat because of a medical condition.

Sometimes you may have observed the employee's job performance or you may have received reports from others who have seen the employee's behavior. These observations or reports may give you a reasonable belief that the employee's ability to perform essential job functions is impaired by a medical condition or that the employee poses a direct threat because of a medical condition.

*Practice tip: If an employee with a disability is having trouble performing essential job functions, or doing so safely, do not immediately assume that the disability is the reason. Poor job performance is often unrelated to a medical condition and, when this is the case, it should be handled in accordance with your existing policies concerning performance (e.g., informal discussions with the employee, verbal or written warnings, or termination where necessary). On the other hand, if you have information that reasonably causes you to conclude that the problem is related to the employee's disability, then medical questions, and perhaps even a medical examination, may be appropriate.

Example: A normally reliable employee who is making frequent mistakes tells you that the medication she has started taking for her lupus makes her lethargic and unable to concentrate. Under these circumstances, you may ask her some questions relating to her medical condition, such as how long the medication can be expected to affect job performance.

Inquiries or exams always allowed: Certain types of inquiries or examinations are always permitted, even if they disclose some medical information. For example, you may:


Basic rule: With limited exceptions, you must keep confidential any medical information you learn about an applicant or employee. Information can be confidential even if it contains no medical diagnosis or treatment course and even if it is not generated by a health care professional.

Example: An employee's request for a reasonable accommodation would be considered medical information subject to the ADA's confidentiality requirements.

*Practice tip: Do not place medical information in regular personnel files. Rather, keep medical information in a separate medical file that is accessible only to designated officials. Medical information stored electronically must be similarly protected (e.g., by storing it on a separate database).

The ADA recognizes that employers may sometimes have to disclose medical information about applicants or employees. Therefore, the law contains certain exceptions to the general rule requiring confidentiality. Information that is otherwise confidential under the ADA may be disclosed:

Reasonable Accommodation and Undue Hardship

What is reasonable accommodation?

When do I have to provide an accommodation?

What is undue hardship?

*Practice tip: If providing a particular accommodation would result in undue hardship, consider whether another accommodation exists that would not.

What we've learned - most accommodations are not expensive:

*Practice tip: To offset the cost of accommodations, you may be able to take advantage of tax credits, such as the Small Business Tax Credit (see Appendix A) and other sources, such as vocational rehabilitation funding.

Regardless of cost, you do not need to provide an accommodation that would pose significant difficulty in terms of the operation of your business.

Example: A store clerk with a disability asks to work part-time as a reasonable accommodation, which would leave part of one shift staffed by one clerk instead of two. This arrangement poses an undue hardship if it causes untimely customer service.

Example: An employee with a disability asks to change her scheduled arrival time from 9:00 a.m. to 10:00 a.m. to attend physical therapy appointments and to stay an hour later. If this accommodation would not affect her ability to complete work in a timely manner or disrupt service to clients or the performance of other workers, it does not pose an undue hardship.

Other Limitations on the Obligation to Provide Reasonable Accommodation:

In addition to actions that would result in undue hardship, you do not have to do any of the following:

How does an employee ask for an accommodation?

*Practice tip: Even though you do not have to initiate discussions about the need for a reasonable accommodation, if you believe that a medical condition is causing a performance or conduct problem, you certainly may ask the employee how you can help to solve the problem and even may ask if the employee needs a reasonable accommodation.

What should I do when an employee requests an accommodation?

Can I ask for information about an employee's disability?

*Practice tip: You also may make an accommodation without requesting any documentation at all. You are free to rely instead on an individual's own description of his or her limitations and needs.

Procedures for Providing Reasonable Accommodation

Basic rule: The ADA does not require an employer to have a particular type of procedure in place for providing reasonable accommodations.

*Practice tips:

Consider putting procedures for providing reasonable accommodations in writing (though this may not be necessary, particularly if you are a very small employer and have one person designated to receive and process accommodation requests).

As an alternative to written procedures, you might include a short statement in an employee handbook indicating that you will provide reasonable accommodations for qualified individuals with disabilities, along with the name and telephone number of the person designated to handle requests.

You also may want to indicate on written job applications that you will provide reasonable accommodations for the application process and during employment.

And bear in mind, whether you have written procedures or not:

Types of Reasonable Accommodations

Basic rule: There are many accommodations that enable individuals with disabilities to apply for jobs, be productive workers, and enjoy equal employment opportunities. In general, though, they can be grouped into the following categories.

*Practice tip: There are tax incentives available to many small businesses for providing some of the reasonable accommodations described below. (See Appendix A.)

Safety Concerns

Basic rule: The ADA allows you to ask questions related to disability and even require a medical examination of an employee whose medical condition appears to be causing performance or safety problems.

Direct Threat: You also may reject a job applicant with a disability or terminate an employee with a disability for safety reasons if the person poses a direct threat (i.e., a significant risk of substantial harm to self or others). Employers have legitimate concerns about maintaining a safe workplace for all employees and members of the public and, in some instances, the nature of a particular person's disability may cause an unacceptable risk of harm.

*Practice tip: You must be careful not to exclude a qualified person with a disability based on myths, unsubstantiated fears, or stereotypes about that person's ability to safely perform the job.

Examples of what to consider:

Examples of what to be careful about:

Food safety - A special rule: Under the ADA, the Department of Health and Human Services annually issues a list of the infectious or communicable diseases transmitted through the handling of food. (Copies of the list may be obtained from Center for Infectious Diseases, Centers for Disease Control & Prevention, 1600 Clifton Road, N.E., Mailstop C09, Atlanta, GA 30333 (404) 639-2213.)

Drug & Alcohol Use

What to do if a charge is filed against your business

Basic rule: A charge means only that someone has alleged that your business discriminated against him/her on a basis that is protected under Federal equal employment opportunity law: race, color, national origin, religion, sex, age, or disability. A charge does not constitute a finding that you did, in fact, discriminate.

What's the process?

*Practice tip: EEOC's mediation program is free. The program is voluntary and all parties must agree to take part. The mediation process also is confidential. Neutral mediators provide employers and charging parties the opportunity to reach mutually agreeable solutions. If the charge filed against your company is eligible for mediation, you will be notified by the EEOC of your opportunity to take part in the mediation process. In the event that mediation does not succeed, the charge is referred for investigation.

*Practice tip: Even if you believe that the charge is frivolous, submit a response to the EEOC and provide the information requested. If the charge was not dismissed by the EEOC when it was received, that means there is some basis for proceeding with further investigation. There are many cases where it is unclear whether discrimination may have occurred and an investigation is necessary. You are encouraged to present any facts that you believe show the allegations are incorrect or do not amount to an ADA violation.(3)


The Internal Revenue Code includes several provisions aimed at making businesses more accessible to people with disabilities. The following is designed to give you general information about three of the most significant tax incentives. It is not legal advice. You should check with your accountant or tax advisor to find out whether you are eligible to take advantage of these incentives or visit the Internal Revenue Service's website,, for more information. Additionally, consult your accountant or tax advisor about whether there are similar state and local tax incentives.


Below are a few of the most frequently consulted resources for accommodating qualified individuals with disabilities. Many other resources exist both nationally and locally, such as organizations of and for individuals with particular types of disabilities. Finding one of these organizations in your area may be as simple as consulting your local phone book. Additionally, the federal government has a web site,, which provides links to many federal resources.

Job Accommodation Network (JAN)- provides lists based on specific disabilities as well as links to various other accommodation providers.

P.O. Box 6080
Morgantown, WV 26506-6080
(800) 526-7234 or (304) 293-7184

U.S. Department of Labor
For written materials: (800) 959-3652 (voice); (800) 326-2577 (TTY)
To ask questions: (202) 219-8412

ADA Disability and Business Technical Assistance Centers (DBTACs) - 10 federally funded regional centers to provide assistance on all aspects of the ADA.
(800) 949-4232

RESNA Technical Assistance Project - can refer individuals to projects offering technical assistance on technology-related services for individuals with disabilities.
(703) 524-6686 (voice); (703) 524-6639 (TTY)

Access for All Program on Employment and Disability
School of Industrial and Labor Relations
106 ILR Extension
Ithaca, NY 14853-3901
(607) 255-7727 (voice); (607) 255-2891 (TTY)

Business Leadership Network 1331 F Street, N.W.
Washington, D.C. 20004-1107
(202) 376-6200, ext. 35 (voice); (202) 376-6205 (TTY)


Many businesses say that they would like to hire qualified individuals with disabilities, but do not know where to find them. The following resources may be able to help. In addition, you may contact organizations of and for individuals with specific disabilities in your area and consult

RISKON - executive recruitment firm committed to helping people with disabilities find jobs:

15 Central Avenue
Tenafly, NJ 07670
(201) 568-7750
(201) 568-5830 (fax)

National Business & Disability Council - provides full range of services to assist businesses successfully integrate people with disabilities into the workplace:

201 I.U. Willets Road
Albertson, NY 11507
(516) 873-9607 or (516) 465-1501

Job Accommodation Network (JAN) - provides a variety of resources for employers with employees with disabilities and those seeking to hire employees with disabilities:

P.O. Box 6080
Morgantown, WV 26506-6080
(800) 526-7234 or (304) 293-7184

Employer Assistance Referral Network (EARN) - a national toll-free telephone and electronic information referral service to assist employers in locating and recruiting qualified workers with disabilities. EARN is a service of the U.S. Department of Labor, Office of Disability Employment Policy with additional support provided by the Social Security Administration's Office of Employment Support Programs:

1-866- EARN NOW (327-6669)


1. Source: Small Business Administration, Office of Advocacy,

2. If you are a federal contractor, you will also have obligations under Section 503 of the Rehabilitation Act. This law prohibits discrimination and requires contractors and subcontractors to take affirmative steps to hire and to promote qualified individuals with disabilities.

For further information on the requirements of Section 503, contact the Office of Federal Contract Compliance Programs (OFCCP) of the U.S. Department of Labor at (202) 693-0100 (Voice) or (800) 326-2577 (TDD), or at

3. The Small Business Regulatory Enforcement Fairness Act allows small businesses to comment about federal agency enforcement actions to an SBA Ombudsman. For information about this process and how to submit a comment, see Small Business and Agriculture Regulatory Enforcement National Ombudsman. It is EEOC policy to ensure that employers are not targeted for enforcement actions as a result of their comments to the SBA Ombudsman.

This page was last modified on February 4, 2004.

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