The Americans with Disabilities Act (ADA) is celebrating its 30th anniversary this year. But even though employers have had three decades to learn about compliance with the law, issues – and lawsuits – are still common. Here’s what today’s employers need to know now about applying the law, approaching employees and staying compliant.
Recognizing When the Law Applies
Title I of the ADA covers private employers with 15 or more employees, as well as state and local government employers, and it means that employers cannot discriminate against individuals with disabilities in employment matters, including hiring, firing, compensation, promotions and training issues. Additionally, employers must provide reasonable accommodations to qualified individuals with disabilities as long as doing so would not create an undue hardship for the employer.
The ADA does not provide a list of conditions that should be considered disabilities. Instead, a person is considered disabled if he or she has an impairment that substantially limits one or more life activities, has a history of impairment or is perceived by others as having an impairment. The impairment can be physical or mental in nature.
Discussing Impairments and Accommodations with Employees
Employers should be careful when approaching employees regarding disabilities. While it’s important to find out whether job duties can be performed and what accommodations might be needed, you also need to respect the individual’s privacy.
Although there are many subtleties to the ADA, here are two rules of thumb that employers should follow:
- Employers should never ask if a worker or job seeker is disabled or how severe disabilities are. Instead of asking about personal medical details, employers should focus on whether essential job functions can be performed. For example, if a job requires lifting, you might ask whether a worker or job seeker can lift 20 pounds.
- When a worker or job seeker brings up a disability-related issue, try to find a reasonable accommodation. In general, the individual with the disability is responsible for informing the employer about the need for accommodation. In some cases, the individual may ask for a specific accommodation that is known to work. In other cases, the individual may bring up an impairment, and the individual and the employer may need to work together to find a reasonable accommodation.
Complying with the ADA During the Pandemic
The pandemic has created a health emergency, and employers are permitted – and expected – to take steps to prevent the spread of disease in the workplace. However, employers must still comply with the ADA.
When creating COVID-related policies and procedures, employers should refer to guidance from the EEOC. Based on current guidance, the following is true:
- Employers can ask workers if they are experiencing symptoms connected to the coronavirus pandemic, such as fever or cough. Employers can also conduct temperature screenings and testing for current infection during the pandemic.
- Some requests are still off limits. Employers should not ask if employees have infected family members, although they can ask about possible exposure to the virus. Also, employers should not require antibody testing for previous infection.
Resources and Tips to Stay Compliant
Remember to document all employment decisions thoroughly. This way, if an individual makes an allegation of discrimination, you will be able to show that your decisions were compliant and not discriminatory. Also be sure to document requests for accommodations and the response given, including all efforts at accommodation.
If you are having trouble finding reasonable accommodations for a worker or job seeker, you can turn to the Job Accommodation Network (JAN). JAN provides free consulting services for employers that need help with the accommodation process, accommodation ideas or other ADA compliance issues.
Higginbotham’s HR Services team is also a good resource.