October is National Disability Employment Awareness Month or NDEAM. In recognition of this month, we posted a series of short articles to educate job applicants, employees, and employers about the rights of people with disabilities in the workplace.
This is for information purposes only, and is not intended to be legal advice for any claim. If you think you face discrimination, seek out competent legal advice.
Title I of the Americans with Disabilities Act (ADA) and Section 504 of the Rehabilitation Act provide federal civil rights protections for people with disabilities in employment. These two federal laws protect job applicants and employees from discrimination based on the person’s disability. Employers are required to follow these laws if they are large enough or receive federal financial assistance. A job applicant or employee is protected from discrimination under these laws if they are “a qualified person with a disability.”
Employers Required to Follow the ADA or Section 504
Public and private employers with 15 or more employees for 20 or more calendar weeks per year must adhere to Title I of the ADA. Employers who receive federal financial assistance (e.g. a loan or grant) no matter their size, must adhere to Section 504. For example, a college which accepts federal student loans must follow Section 504.
An employer who is required to follow the ADA or Section 504 must not discriminate against a qualified person with a disability in the application process, hiring, firing, pay, promotions or treatment in the workplace. Later articles will discuss these specific rights. Even if not covered under the ADA or Section 504, small employers may still be subject to a state anti-discrimination law.
Job Applicants and Employees Protected Under the ADA and Section 504
Job applicants and employees who are qualified for the position they hold or seek and who have a disability have protections under Title I of the ADA and Section 504. A disability under these laws means a person has either a physical or mental impairment that substantially limits at least one major life activity, has a record of an impairment, or is seen as having an impairment. Major life activities include such things as seeing, hearing, bending, speaking, thinking, and other similar activities. Major life activities also include bodily functions such as the digestive, circulatory, neurological, and endocrine systems, as well as bladder, bowel, brain functions, among others. The ability of a person to limit the effect of symptoms through medication or treatment must not be considered when determining if a person has a disability under the ADA.
The U.S. Equal Employment Opportunity Commission, charged with investigating violations and issuing guidance on Title I of the ADA has additional information on specific disabilities.
Voluntary Disclosure of a Disability
Often job applicants ask if they must voluntarily disclose their disability to a potential employer. Under federal law the answer is generally no, unless the applicant wants a reasonable accommodation during the hiring process. If an applicant wants this kind of accommodation, they may need to provide information about the disability related to the need for the accommodation. In most other cases, applicants can choose not to disclose their disability.
What Employers Can Ask Before Hiring an Applicant
The ADA prohibits employers from asking a job applicant about a disability during the application and interview process. An employer cannot ask questions that could require an applicant to disclose medical information. For example, an employer cannot ask a job applicant about worker’s compensation clams, medical treatment, or the use of prescribed medications. Under the ADA an employer cannot ask a job applicant to undergo a medical exam. The ADA also restricts the use of tests during the hiring process which are designed to or could reveal a physical or mental impairment.
The ADA allows employers to ask applicants about how they would perform the main functions of a job. For example, an employer could ask a person with a hearing impairment how they would communicate with customers if a necessary part of the job. An employer could ask an applicant with limited dexterity to demonstrate how they would use a piece of equipment if using the equipment is necessary to perform the job. The ADA also permits employers to test for current illegal drug use.
What Employers Can Ask After a Job Offer
After an employer makes a job offer, they can ask for medical information prior to the person starting the job. Employers can condition a job offer on completing a medical exam. The employer can only legally withdraw a job offer based on medical or disability reasons if the person cannot perform the main job functions with or without a reasonable accommodation.
Employers cannot single out a person offered a job for a medical inquiry or exam, but must be consistent across a job category. For example, an employer would not violate the ADA if it required those offered a job as truck drivers to take a physical exam, but not those hired for the finance department. The employer would violate the ADA if it asked a specific person offered a truck driver position to take a medical exam but not all persons offered such a position.
Employers required to follow federal disability rights laws, as discussed in our first article, are prohibited from using a disability as the reason to, as examples:
– Not hire a qualified applicant.
– Pay less than other workers doing the same job, or deny a pay raise if an employee is otherwise qualified for the raise.
– Deny a promotion if an employee is entitled to or is the best candidate for the promotion.
– Deny a benefit, such as insurance, retirement, training and advancement opportunities to an employee that is available to other employees.
– Terminate an employee.
– Refuse to make a reasonable accommodation (to be discussed in the next article).
Employers must also apply disciplinary rules in a consistent and even manner. Employers are prohibited from creating or applying a disciplinary rule which discriminates against persons with disabilities even if unintended. For example, an employer cannot create a zero tolerance attendance policy without providing reasonable exceptions for employees with disabilities.
Employees with disabilities have a right under the ADA to a workplace which is free from harassment. Similar to sexual harassment prohibitions, if an employee with a disability faces a hostile work environment based on their disability, the employer needs to take effective action to address the harassment.
An employer is restricted from requesting medical information from an employee or require an employee to undergo a medical exam unless the request is “job related and consistent with business necessity.” Routine medical exams, such as for airline pilots or those using heavy dangerous equipment, or if required by law, will meet that standard. In other cases, if an employer suspects that medical condition interferes with an employee’s ability to perform a job or would be a direct threat to themselves of others, the employer needs to have a reasonable belief based on objective evidence a medical condition is involved before asking the employee to undergo an exam.
Retaliation and Interference
The ADA prohibits employers from retaliating against employees who file or participate in a disability discrimination claim. Employees and job applicants with disabilities are also protected against interference, meaning an employer cannot intermediate, coerce, or threaten an employee from exercising their ADA rights. For example, an employer would violate the ADA by refusing a cost of living pay raise unless an employee with a disability withdrawals a request for a reasonable accommodation.
Under the Americans with Disabilities Act (ADA), the Rehabilitation Act, and state law, most employers in the U.S. must provide employees with a disability reasonable accommodations to allow them to perform the essential, or main, functions of their job. The employee must have a disability, be qualified for the job, (such as meeting the education or experience requirement of the job), and be able to perform the main functions with the accommodations. An employer can refuse an accommodation which would pose an undue hardship or would be a direct threat to the employee or others. In other words, an employer can deny an unreasonable accommodation.
Types of Accommodations
Jobs and employees with disabilities vary widely, and so do possible job accommodations. An accommodation might include letting an employee with a back related disability to sit instead of stand at a consumer service counter, providing an employee who is blind with software which can read a computer screen, or transferring an employee to a vacant job when they can no longer perform their current job. Accommodations can include changes to work policies, such as allowing an employee to modify their daily work hours to account for the symptoms of a disability.
Requesting an Accommodation
While not required, employees seeking an accommodation is best served by making the request in writing. Employers must also react when it is apparent an employee is requesting or needs an accommodation for a disability even when not in writing.
Since accommodations vary, the employee and the employer need to engage in discussions, called an interactive process, to determine what accommodations are possible. An excellent source for finding workplace accommodations for both employees and employers is the Job Accommodation Network (JAN) funded by the U.S. Department of Labor.
What is Reasonable?
In most cases there is no definite answer to what is or what is not a reasonable accommodation. Reasonableness depends on the needs of the employee, the location or facility where the employee works, the actual work involved, the nature of the employer’s business, the impact on other workers, and the financial resources of the employer and the individual facility. Employers should look at the factors listed in the ADA for determining if an accommodation might be an undue hardship.
Employers should keep in mind that 56% of accommodations cost nothing according to a JAN survey on-going since 2004. When cost is involved, it is typically around $500.
Types Of Accommodations For Less Obvious Disabilities
If an employee happens to use a wheelchair or happens to be deaf, it may seem quite obvious that an appropriate reasonable accommodation would be the installation of a ramp to allow for easy entrance into the building or the hiring of a sign language interpreter. But, what is the individual’s disability is not as obvious?
Gastrointestinal (GI) Disorders
Gastrointestinal (GI) disorders include things like Crohn’s disease and Irritable Bowel Syndrome (IBS), among others. Common GI symptoms include: nausea, constipation, abdominal pain and diarrhea. Such symptoms are frequently exacerbated by work stress.
Here is an example (from the Job Accommodation Network (JAN) – www.askjan.org) of an inexpensive, easy-to-implement reasonable accommodation for employees with GI disorders.
A customer service representative was absent from her desk to the point that it was negatively impacting her performance numbers because of frequent and urgent need to use the restroom. The employer moved her workstation closer to the nearest office restroom, thereby reducing her absence from taking phone calls at her desk and increasing her productivity.
Diabetes is a disability that causes an individual’s glucose levels to be above normal because the pancreas does not produce enough insulin. Various methods may be used to monitor glucose levels, including apps and service animals. Medication such as insulin may be needed and scheduled food breaks may be a necessity.
Here are some examples (from the Job Accommodation Network (JAN) – www.askjan.org) of inexpensive, easy-to-implement reasonable accommodations for employees with diabetes.
– Provide an area to test blood sugar levels
– Provide an area to administer medications (insulin)
– Provide appropriate food for office-sponsored events and reward programs
– Consider modifications to policies involving food storage and consumption
What About Covid-19?
Covid-19 and Long Covid has impacted millions of workers and employers, so how does employment law address Covid issues in the workplace?
For workers to be covered by the Americans with Disabilities Act (ADA) or other disability employment laws, the Covid-related medical condition must, like other physical or mental impairments, substantially limit at least one major life activity, such as seeing, hearing, bending, speaking, thinking, and other similar activities. There needs to be good documentation of the limitations and they must be severe enough and/or last long enough to be covered by the ADA. In other words, having Covid symptoms does not mean a worker automatically qualifies for ADA coverage, but coverage is possible. Workers may also be covered by the ADA if their employers have a record of or “regard” a worker who has Covid-like symptoms as a person with a disability who has substantial limitations (even if the workers doesn’t actually have those limitations).
Workers who are covered by the ADA due to Covid-related health problems may request a reasonable accommodation so they can continue working. Accommodations such as modifying job hours, having full time or part time remote work, restructuring of minor job duties, allowing use of personal protection equipment, and/or limiting exposure to the public could reasonable and could allow a worker to keep working. These types of accommodations could support workers who are experiencing common Covid-related symptoms such as fatigue, breathing issues, “brain fog” or other neurological problems, pain and/or who may be at higher-risk for other or more severe health problems.
Requests for accommodations for Covid and Long Covid symptoms, just like other accommodation requests, are best done in writing. And, once the accommodations are requested, the employee and employer should meet in an interactive process to agree on what accommodations are possible. The Equal Employment Opportunity Commission (EEOC) developed an extensive guide on Covid-19 and working that discusses these topics and more that can be found here: What You Should Know About COVID-19 and the ADA, the Rehabilitation Act, and Other EEO Laws | U.S. Equal Employment Opportunity Commission (eeoc.gov)
This entry was written prior to the end of the federal Public Health Emergency (PHE) for COVID-19, declared under Section 319 of the Public Health Service (PHS) Act.