Disability Discrimination Facts

Small business owners like flexibility in hiring employees. Laws restricting hiring and firing ability pressure small businesses. Most of these laws prohibit discrimination; that is, they only prevent employers from refusing to hire some kinds of workers. The ADA has some affirmative rules that require employers to do things if they hire certain employees.

The Americans with Disabilities Act (ADA) became law in 1990. It prevents public and private employers from discriminating against otherwise qualified individuals based on their disabilities. People with disabilities must have the same employee benefits as all other job applicants.

The ADA applies to all businesses with 15 or more employees. It includes government agencies, labor organizations, and educational institutions. Section 501 of the Rehabilitation Act provides the same job protections for federal employees. The Equal Employment Opportunity Commission (EEOC) is responsible for handling claims about ADA discrimination.

Disability Discrimination FAQ

Business owners and human resources departments have many questions about the implementation of the ADA. FindLaw answers some of the most frequently asked questions in this article.

Who is a person with a disability?

According to the ADA, a person with a disability is anyone who:

• Has a physical or mental impairment that substantially limits one or more major life activities
• Has a history of having such an impairment
• Is perceived as having such an impairment

Under the ADA, a long-term disability meets eligibility requirements, even if the person is not limited right now. A chronic medical condition controlled by medication, like diabetes, is still considered a disability.

Major life activities are functions that are important to everyday life. Major life activities include, but are not limited to:

• Actions and movements such as speaking, hearing, walking, or standing
• Cognitive functions such as thinking, learning, or communicating
• Sensory functions such as seeing, hearing, or smelling

What are reasonable accommodations?

The ADA requires employers to make reasonable accommodations for employees with disabilities. A reasonable accommodation is a change in the workplace or job function that allows the employee to complete the task despite their disability. Reasonable accommodations can include:

• Modifying work schedules, turning a full-time position into a part-time one
• Making facilities physically accessible by installing ramps, replacing doorknobs with levers, etc.
• Providing requested equipment or devices to assist workers in carrying out their tasks

A needed or reasonable alteration to the workplace depends on the employee. Employers should wait until the employee requests assistance before making any changes to the workplace. Never make an unrequested accommodation or assume an employee needs or wants any change in their job unless they ask.

My employee asked for an elevator to get to an office on the second floor. Do I need to install one?

The ADA does not require employers to make an accommodation if it will be an undue hardship on the business. What constitutes an undue hardship depends on several factors, such as the nature of the request and the size of the business. In general, larger businesses and smaller requests must accommodate. A small business would likely not have to install an elevator in a two-story building.

Negotiating reasonable accommodations is an interactive process between the employer and the employee. The employee must describe what they need and why. The employer must explain what is possible and offer alternatives if the first option is unavailable. The alternatives must be approximately equal. For instance, if the employer offers the employee an office on the first floor, it cannot be a converted storage closet.

I just want to avoid wasting everyone's time. Can I put specific disabilities I don't want on my job listing?  

No matter how noble your intentions are, you cannot put something like “No blind people may apply," on your job announcement. Even if the position is one that no visually impaired person would apply for, employers cannot discriminate against individuals based on a disability.

Employers cannot ask job applicants if they have disabilities during interviews. All new employees must have medical examinations, and the exams must relate to the job requirements. For instance, if a job requires workers to lift heavy boxes all day, a medical examination for back and joint injuries is reasonable.

The ADA and federal laws allow employers to turn down a worker after a conditional offer of employment. A disabling condition that would prevent the worker from performing the job that was not disclosed before hiring is grounds for termination.

My employee requested an accommodation. What questions am I allowed to ask?

Once an employee requests accommodations, employers can ask questions to assist with managing the request.

Employers can inquire about:

• The nature of the impairment and how the requested accommodation will improve job performance. Employers may request confirmation from a physician.
• If an impairment is obvious, such as a wheelchair user who needs a ramp or an adjustable desk, employers do not have to wait for an accommodation request. They should avoid making the changes they think the employee will like. Instead, they should solicit the employee's input: “What type of desk will work best for you?"
• Employers may request additional information from healthcare providers if the request is unclear. If a doctor's instructions are “light duty," an employer can ask for clarification. How many pounds can the employee lift? How many hours per day can they stand?

Businesses often make accommodations for workers who are not disabled, such as a parent who must leave early on Fridays to pick up a child. ADA requirements are the same, except that employers can only ask about the specific reasons for the accommodation if the employee discloses them.

Am I required to offer my workers disability insurance?

Maybe. Disability insurance is a type of additional insurance that pays up to 70% of a worker's pay following a disability at work. Short-term disability benefits cover up to six months of pay. Long-term disability insurance can cover an employee for life. Most insurance companies offer both types of coverage.

California, Hawaii, New Jersey, New York, Rhode Island, and Puerto Rico require employers to offer workers short-term disability insurance. Other states may include it in their workers' compensation insurance or mandated paid family and medical leave acts. You should consult a business attorney for clarification on this matter.

What can I do for workers who aren't disabled but who need time off for serious medical issues?

Small businesses can't always give everyone the time off they need. The Family and Medical Leave Act (FMLA) was enacted so workers could have up to 12 weeks of unpaid leave even if they had not accrued any sick leave. The FMLA requires workers to have worked 1250 hours during the preceding 12 months, but those months do not have to be continuous.

FMLA time can be taken in lieu of sick time, after, or intermittently. The U.S. Department of Labor provides more guidance on how FMLA time can be used.

Getting Legal Help

Small business owners must follow the same rules of the ADA as other companies. If you have questions or concerns about the status of your business, contact an employment attorney near you. Getting legal assistance gives you and your workers peace of mind.