If this was an on-line seminar, we might ask something like, "How many of you know what ADA means?" but it's not, so we won't. We'll just start off by telling you it's not the American Dairy Association or the American Dental Association. These three little letters are used to strike fear in the heart of many employers. The ADA in this article and in many business conversations stands for Americans with Disabilities Act and what a boon for disabled employees it has been.
Since it's enactment in 1992, the ADA has been the bane of existence for many employers, especially smaller employers. At the present time, the ADA is applicable to employers with 15 or more employees, but don't think you are immune from listening to employees throwing it out to you if you only have ten employees. Most of the time, employees aren't even aware many smaller employers are exempt from many employment laws.
It's also important to know the ramifications of the ADA if you ever intend to grow. Many businesses can only make big money when they can leverage the efforts of their employees. Thus, many times, bigger is better - kind of. However, everything in business has a downside and in the area of employment law, that downside is - the bigger you are, the more laws affect you. With that in mind, let's explore how the ADA may affect you.
What does the ADA require?
The ADA, in its simplest form, prohibits employers from discriminating against an employee simply because a person is disabled.
The term disability is rather broadly defined under the Act. Under the ADA, a person who a) has a physical or mental impairment that substantially limits one or more major daily life activities, b) has a record of having such an impairment, or c) is regarded as having such an impairment, is disabled.
Going a little deeper, a physical impairment
under the law is, "Any physiological disorder or condition, cosmetic disfigurement, or anatomical loss affecting one or more of the following body systems: neurological, musculoskeletal, special sense organs, respiratory (including speech organs) cardiovascular, reproductive, digestive, genitourinary, hemic and lymphatic, skin and endocrine." If this sounds as though it covers the gambit of possible body functions, it does and therefore requires employers to exercise extreme caution when dealing with possible ADA matters.
A mental impairment
is "...any mental or physiological disorder, such as mental retardation, organic brain syndrome, emotional or mental illness, and specific learning difficulties." Again, there is a broad spectrum of what constitutes a mental impairment.
While the law is broad, it does state that a physical or mental impairment must be the result of a disorder. Simple physical traits and personality traits do not constitute disabilities under the ADA if they are not the result of some identifiable disorder. Additionally, normal physical conditions such as pregnancy or a predisposition to a disease (flu, colds, etc.) are not included under the definition of a disability.
Here are some examples that may bring the definitions into sharper focus:
- A person who is unable to read, or spell, would be considered to have a disability if that person had dyslexia (a specific learning disability). If that person's co-worker could not read or spell because they dropped out of school, this in itself would not constitute a disability.
- A person with a contagious disease such as HIV or tuberculosis is considered to have impairment.
- Depression or stress due to job or personal matters may or may not be considered a disability. Unless there is a specific diagnosis by a medical professional of an identifiable depressive or stress disorder, these would not be considered impairments. As an aside, if an employee did wish to assert this disability, more likely than not, a medical professional will get involved to help the attorney build the case. Just because there is no diagnosis at the outset, don't think you are out of the woods.
- Alcoholism is considered a disability because it is a readily determinable disorder with physiological roots.
Once there is a determination that a disorder exists, then there must be a determination that the disorder substantially limits an employee's daily activities. In making this determination, three factors are considered:
- The nature and severity of the limitation;
- The length of the limitation or its expected length;
- Its permanent or long-term (or expected long-term) impact on the individual.
The key here is that the disability or impairment must be viewed in relation to the effect on each person¡¦s life. While there are some limitations that are, by definition, severely limiting (deafness, blindness, HIV infection or AIDS, etc.), not all diseases take the same course. Take for instance a person just diagnosed with Muscular Dystrophy. While the potential exists for the person to be disabled in the future, the lack of any substantial impairment on the initial diagnosis would keep the employee from asserting an ADA claim.
A major life activity is something an average person can do without much effort. Walking, talking, hearing, seeing, breathing, learning, caring for oneself, eating and similar normal activities are considered daily life activities. Sitting, lifting and similar actions would be major daily life activities. Again, the category covers a variety of activities. Don't assume something isn't considered a major life activity unless there has been a specific ruling that it is not a major activity.
So far, we've discussed disabilities that really fall under the definition of someone who is actually disabled. However, the statute also covers those who have a record of impairment or are considered to be impaired. For example, people with histories of heart disease, cancer or other illnesses that are cured, controlled or in remission cannot be discriminated against on the basis of those conditions. People who have mild illnesses (say diabetes controlled by medication) that don't substantially limit their activities may fall under the ADA if prospective employers act as if the illnesses do substantially limit daily activities.
This isn't a hotel buddy! Or is it?
Now that you know the ADA exists and a little bit about what a disability is, what do you do about it? How do you avoid being accused of discrimination on ADA grounds? More importantly, what do you do if you are accused and have to support your position?
The short answer to these questions is keep good documentation. The long answer is in the following laundry list:
- Never, never, never ask health related questions of an interviewee. You can ask them if they will be able to perform the duties required by the job, but health questions are specifically to be avoided. This may sound like old hat to many who have lived with the ADA for the past decade, but employers still do it sometimes.
- If an employee asks you to make a minor change or acquire minor equipment to help them do the job better, do it. Carpal Tunnel Syndrome is costing employers big money these days. A wrist rest that can be bought for under $20 could avoid a higher experience rating with your worker's compensation insurer. In fact, the ADA requires employers to make reasonable accommodations (be it equipment, leave, or similar accommodations) for those who are disabled. The definition of reasonable is hard to pin down, but for those things that can be corrected with a small amount of effort, just do it. Sometimes you'll be forced to say no because of the cost involved. Depending on the circumstances, you may sometimes need to speak with a lawyer.
- If you do make modifications or purchase equipment to allow disabled access to your place of business, you may be eligible for a tax credit. This can help you minimize the cost of any such expenditures.
- Develop and maintain written job descriptions. The ADA prohibits discrimination based on disability. However, if a person is physically unable to perform the duties of the job function, even with reasonable accommodation, the ADA does not force you to keep a nonproductive employee.
The Americans with Disabilities Act added a significant layer of regulation to American businesses. However, with careful planning and execution in your employment practices, you can shield yourself from the liability it has created for all employers.
Working with the variety of clients we have, has given us valuable insight into how others protect (or don't protect) themselves. While some issues may need to be discussed with your lawyer, we would be glad to help you map out a strategy to protect yourself from undue liability.
Have a great month!!!