So I noticed that in last week’s a poll several of you were interested in hearing about the Americans with Disability Act (ADA). Today’s discussion is for employer-employee situations, and does not discuss accessibility for businesses open to the public.
General Aspects of the ADA
If you are a business with 15 or more employees you are prohibited from discriminating on the basis of disability. Therefore, a good amount of small business owners are actually affected by this law. In addition, the ADA requires that employers provide “reasonable accommodation” to qualified workers with disabilities who can perform essential job functions. The ADA is enforced by the Equal Employment Opportunity Commission (EEOC).
What is a “Disability”?
Many of you working in HR are already familiar with this definition:
a physical or mental impairment that substantially limits one or more of the individual’s major life activities.
However, in 2008 Congress significantly broadened the term “disability” to say that it includes any physical and/or mental impairments’ that substantially limits either:
- a major bodily function (such as functions of the immune system, normal cell growth, or digestive, bladder, neurological, brain, respiratory, circulatory, endocrine and reproductive functions); or
- an individual’s ability to perform one or more major life functions (such as performing manual tasks, walking, seeing, hearing, speaking, breathing, thinking, interacting with people, learning, working, reading, bending, communicating, eating, sleeping, lifting or standing).
Notice that many health-related issues that were not considered a disability before under the old definition are now under the new one. Be aware that the Final Regulations of the ADA also went into effect on May 24, 2011. You can read them here.
Who the ADA Protects?
The ADA protects workers under three categories:
- a physical or mental impairment that substantially limits one or more major life activities;
- a record (or past history) of such an impairment; or
- being regarded as having a disability.
If an employee fits under one of these categories you are prohibited from discriminating against them.
When the employer has a qualified individual with disabilities that can perform the essential functions of their job they are to provide “reasonable accommodation.” A “reasonable accommodation” may include one of the following:
- making existing facilities readily accessible and usable by disabled persons; and
- job restructuring, modification of work schedules, acquisitions or modification of equipment or devices, adjustment or modifications of examinations, acquisition of training materials or adoption of training policies, provision of qualified readers or interpreters, and other similar accommodations.
In my experience, a lot of business owners see a change of the law, see similar words and think that the law has not changed, which is inaccurate. The new definition of “disability” significantly encompasses more situations. Ask yourself or your HR manager these questions:
- Is there a detailed job description detailing the essential functions of each job?
- Do you have a policy to report to HR when employees state they are not performing or underperforming due to health reasons?
- Do you know that when you are given such information you are on NOTICE?
- Do you have a procedure to handle the interactive process to determine if they are disabled, and then see if they need a reasonable accommodation?
- Do you know that most significant health-related issues are a “disability”? (Even in these situations you have to work with the employee to see if there is a way to keep them employed.)
- Did you know that if you engage in a good faith effort to reasonable accommodate a worker that the law forecloses punitive damages as an award? (Therefore, you have an interest in engaging this process rather than being slapped with extra damages in a suit.)
As always, if you need advice in updating your policies and procedures, handbooks, and agreements seek out an attorney. If you like this post or any of my other series please “Subscribe” to this blawg to receive e-mail updates. In addition, follow me on Twitter and “Like” me on Facebook. If you need to contact me directly, please e-mail me at Ryankhew@hawaiiesquire.com.
*Disclaimer: This post discusses general legal issues, but does not constitute legal advice in any respect. No reader should act or refrain from acting based on information contained herein without seeking the advice of counsel in the relevant jurisdiction. Ryan K. Hew, Attorney At Law, LLLC expressly disclaims all liability in respect to any actions taken or not taken based on the contents of this post.