Signed into law in 1990, the Americans with Disabilities Act (ADA) is civil rights legislation that works to increase the inclusion of people with disabilities in all aspects of community life, including employment.
Title I of the ADA covers private employers (and state and local government employers) with 15 or more employees. It also applies to employment agencies, labor unions and joint labor management committees, regardless of the number of employees. Title II of the ADA covers programs, activities and services of public entities. As part of this, it prohibits public entities (e.g., state and local governments), regardless of size of workforce, from discriminating against qualified individuals with disabilities in their own employment practices. Thus, all state and local government employers are covered.
The ADA prohibits covered employers from discriminating against qualified individuals with disabilities in:
- Job application procedures.
- Hiring.
- Firing.
- Advancement.
- Compensation.
- Job training.
- Other terms, conditions and privileges of employment.
In addition to prohibiting discrimination, the ADA requires covered employers to provide “reasonable accommodations” to qualified job applicants and employees with disabilities. A reasonable accommodation is defined as any change or adjustment to a job, work environment or the way things are usually done that would allow an individual with a disability to apply for a job, perform job functions or enjoy equal access to benefits available to other employees.
Not everyone with a medical condition is protected by the ADA. Rather, the ADA protects qualified individuals with disabilities. An “individual with a disability” is a person who has a physical or mental impairment that substantially limits one or more major life activities, has a record of such impairment or is regarded as having such an impairment. A “qualified individual” means a person who satisfies the job-related requirements of the position he or she holds (or is applying for) and can perform its essential functions, with or without a reasonable accommodation.
The ADA Amendments Act (ADAAA) of 2008 became effective on January 1, 2009. The U.S. Equal Employment Opportunity Commission amended the ADA regulations to reflect the changes made by the ADAAA and final regulations were published in March 2011. The ADAAA and regulations reversed several Supreme Court decisions and made a number of significant changes to the ADA:
- The definition of “disability” was expanded from “limitation in major life activities” to include major bodily functions.
- “Individual with a disability” and “qualified individual” are now separate terms.
- Discrimination is now prohibited “on the basis of disability” rather than “against a qualified individual with a disability because of the disability of such individual.”
- In keeping with Congress’s direction that the primary focus of the ADA is on whether discrimination occurred, the determination of disability should not require extensive analysis.
Discussing Disability
It is important for employers to be aware that the ADA limits when and why they may ask job applicants and employees medical-, health- or disability-related questions (or obtain related information).
For example, employers may not ask job applicants:
- To answer medical questions.
- To take medical exams.
- To identify disabilities.
- Whether they have a disability or the nature of a known disability.
Employers can ask whether applicants believe they can perform the essential functions of the job with or without a reasonable accommodation, and if so, how they would do so. Furthermore, employers may make a job offer contingent upon the answers to certain medical questions or successful passage of a medical exam, if:
- The questions/exam are consistent with business need; and
- All new employees in the same type of job have to answer the questions or take the exam.
For employees already on the job, employers generally can only ask medical questions or require a medical exam if:
- Documentation is needed to support an employee’s request for an accommodation; or
- The employer believes that an employee is not able to perform a job successfully or safely because of a medical condition.
For more information, read Medical Inquires.
If an employer believes that a medical condition is causing a performance or conduct problem, it is okay to ask the employee whether they need a reasonable accommodation. Overall, employers are encouraged to address performance problems with employees with disabilities in the same manner as they would with any employee, and to not assume that these are related to the person’s disability.
The ADA also requires that employers keep all medical records and information confidential and separate from personnel files.
It is important to note that employers who are federal contractors covered by Section 503 of the Rehabilitation Act of 1973 can ask applicants and employees to voluntarily self-identify as people with disabilities consistent with that law’s affirmative action provisions.
The U.S. Department of Labor Office of Disability Employment Policy-funded Job Accommodation Network provides extensive technical assistance on the reasonable accommodations provisions of the ADA. It also has an extensive online library of publications on the ADA and related laws.