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Hsu & Associates LLC Employment Law Articles and FAQsFREQUENTLY ASKED QUESTIONS ABOUT DISABILTY DISCRIMINATION IN EMPLOYMENTThis article about disability discrimination in employment includes a generalized discussion of some of the laws governing discrimination in the workplace. It is designed to identify key concepts and is not intended to be a comprehensive discussion of the statutes or law governing this area. These materials should not be construed as legal advice or legal opinion, which can be rendered properly only when related to specific facts. 1. What is the Americans With Disabilities Act?a. The Americans with Disabilities Act (the “ADA”) prohibits discrimination against the disabled in employment, public accommodations and other areas. b. The ADA states that employers cannot discriminate against a qualified individual with a disability because of the individual's disability in regard to any term, condition, or privilege of employment. Employers must provide disabled employees with reasonable accommodations to allow them to perform the essential functions of their jobs. c. In recent years, more attention has been given to disabled individuals in the workplace. For this reason, the ADA presents several critical questions to employers: What is a disability? When is an individual with a disability qualified? What does reasonable accommodation mean? What questions can disabled applicants or employees be asked? 2. What is a “disability” under the Americans With Disabilities Act?a. The term disability is defined as:
b. Physical or mental impairments which constitute disabilities can include:
3. What are “major life activiites”?a. To rise to the level of disability, a physical or mental impairment must substantially limit a major life activity. Major life activities include: caring for oneself, performing manual tasks, walking, seeing, hearing, speaking, breathing, learning, reading, sitting, standing, lifting, reaching, and working. b. The inclusion of working in the definition of a "major life activity" is particularly significant. If a person cannot perform a "broad range of jobs" because of an impairment, he or she is disabled, even if the person is not substantially limited in other major life activities. For example, a bad back that limits an employee's ability to lift things might preclude that person from performing a broad range of jobs and thus constitute a disability. However, an employee's inability to perform a particular job because of an impairment does not necessarily mean that the person is substantially limited in a major life activity. 4. Are “temporary impairments” covered?a. Temporary impairments generally will not be considered a disability under the ADA. For example, broken bones, appendicitis, and the flu are temporary impairments that do not normally substantially limit major life activities. b. However, the extent, duration and impact of a normally temporary injury or illness might be great enough to be "substantially limiting". 5. Are drug users considered “disabled” under the ADA?a. Employers may prohibit the use of drugs or alcohol in the workplace. In addition, they may hold employees using alcohol or drugs to the same performance, attendance and qualification standards as other employees and need not tolerate drug or alcohol-related absenteeism more than similar levels of absenteeism by other employees. b. Past drug addiction may be a disability. Former addicts who have completed a supervised drug rehabilitation program and are not currently using drugs illegally may be protected by the Act. c. In addition, employees who are mistakenly perceived to be current drug users are considered to be disabled, and an employer who denies employment or otherwise discriminates based on such a mistaken perception may be found liable under the Act. d. However, individuals currently using drugs illegally are not considered "disabled" under the Act. This definition includes current possession or distribution. The term current is not to be interpreted literally; rather, it means that "the illegal use of drugs occurred recently enough to justify an employer's reasonable belief that involvement with drugs is an ongoing problem. 6. Are alcoholics considered disabled under the ADA?a. Alcoholism is considered a disability. b. Alcohol-related performance or attendance problems can be legitimate grounds for discharge or discipline. Alcoholic employees, even those who are still drinking, may be entitled to reasonable accommodations (e.g., leave of absence for rehabilitation) if such accommodations would enable them to perform the essential functions of their positions. 7. When is an individual with a disabilty “qualified”?a. To be protected by the ADA, a disabled individual must be qualified. That is, the individual must be able to perform the essential functions of the job that the individual holds or desires, with or without reasonable accommodation. b. The essential functions of a position equate with its "fundamental job duties". A number of factors can be used to determine the essential functions of a position:
c. A crucial inquiry is whether an employer actually requires the performance of functions that it asserts are essential. Moreover, when analyzing the essential functions of a position, employers should focus on the results or outcome expected from the job. Although job descriptions may include an explanation of how a function is performed, the manner in which a task is completed is less important than the result to be achieved. 8. What does “reasonable accommodation” mean?a. Determining what accommodations are reasonable should be determined on a case-by-case basis. Two individuals with similar disabilities may require very different accommodations. Or, what may be reasonable at one location may not be reasonable at another. b. Disabled individuals may have to be accommodated at three different stages of the employment relationship: when applying for a job, when performing the essential functions of the job, and to enjoy the benefits and privileges of employment. c. Accommodations can take a number of different forms, such as:
d. Reasonable accommodation need not be provided if it would cause "undue hardship" for the employer, i.e., a "significant difficulty or expense". Various factors related to the nature and cost of the accommodations, the employer's financial resources and the nature of the employer's operations are considered in assessing whether a requested accommodation would cause an undue hardship. e. It is up to the employee to request an accommodation and employers only have to accommodate disabilities of which they are aware. Once an accommodation has been requested, the employer has to determine what accommodation is reasonable. The employer should consult with the employee in this process. When considering accommodations, keep in mind (i) the abilities and limitations of the disabled employee, and (ii) the essential functions of the job. Practical Management Tips … In Preventing Disability Discrimination
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