FAQ

Frequently Asked Questions
relating to persons with disabilities

I know about the Americans with Disabilities Act (ADA), but does it apply to my medium sized firm?

Yes, if you are a private employer who has at least 15 employees working 20 or more calendar weeks per year.

In the employment context, who is covered by the ADA?

To be eligible for protection under the ADA, an individual must be either a job applicant or an employee who satisfies the following requirements:

• Individual is disabled, is perceived to be disabled, or has a history of a disability;
• and Individual is qualified to perform the essential functions of the job (with reasonable accommodation, if necessary).

Who is considered disabled under the ADA?

An individual is considered disabled under the ADA if he/she satisfies any one of the following conditions:

• Individual has a physical or mental impairment that substantially limits one or more major life activities;
• or has a record of such an impairment;
• or is regarded as having such an impairment (may be due to an association with an individual with a disability).

What does the ADA require in terms of employment?

Title I of the ADA covers employment and requires the following:

• Employers may not discriminate against a job applicant or employee who is covered under the ADA in terms of any employment situation or action. This includes job application, hiring, promotion, training, compensation and benefits, firing and any other term or condition of employment -- unless the individual's disability poses a direct threat to the safety of himself/herself or to others.
• Employers must provide reasonable accommodation to qualified individuals in order to enable them to do their jobs, unless doing so would impose an undue hardship on the employer.
• Employers must not tolerate any workplace harassment due to a physical or mental disability.

Can an employer ask applicants if they are disabled and what type of reasonable accommodation they may need?

No. An employer should discuss the duties of the job with all applicants. Reviewing the job description together is a great way to do this. The employer may then ask if the applicant is able to perform the essential functions of the job, with or without reasonable accommodation. This question should be asked of all applicants, whether or not they have an obvious disability.

How do I determine the "essential functions" of a job?

Essential functions are the key functions and responsibilities of the job. If the essential functions were removed from the job, the job would be significantly altered and/or it could not exist as it does today. For example, typing can be considered an essential function of a typist's job. If that duty were to be removed, the position could no longer exist as or be considered a typist. However, typing is most likely not considered an essential function for professional positions because it, in and of itself, is not a key function or responsibility for most professional positions. If the typing duty were to be removed, a professional position would most likely still exist as a professional position.

A helpful way to identify essential functions is to think about duties as core functions or tangential functions. Core functions are critical to the job. In a sense, they may be why the job exists. Tangential functions are less important and, if altered or removed from the job, will most likely not impact the core functions or responsibilities of the job.

My employer requires that its attorneys work very long hours. How do I ask a physically disabled applicant what schedule he/she can work?

Think about the information you really need to know: whether applicants for this position can regularly work the required number of hours each week. You need to know this of all applicants, not just one that happens to have a disability. The interview question, then, to be asked of all applicants is something like, "This position requires the selected individual to be able to work a regular schedule of approximately 60 hours per week. Are you able to meet that requirement?"

I have a small firm. An employee has requested that the firm purchase very expensive customized hearing aids to assist with her hearing disability. What should I do?

The ADA requires covered employers to make "reasonable accommodation." A reasonable accommodation is one that does not create or impose an undue hardship on the employer. The ADA does not require employers to provide the most expensive accommodation, nor does it require employers to provide assistive devices for personal use outside of work. It is understandable that an employee would request something his/her health care provider has recommended. It is equally understandable that an employer would deny such a request given that hearing aids are for personal use and are cost prohibitive.

Assuming you are a covered employer, you should talk with the employee to identify what type of assistance he/she needs to help in the performance of the essential functions of her job. Depending on the essential functions identified, there may be other assistive devices that can provide the employee with the necessary accommodation. For example, if hearing callers on the phone more clearly is the need to be accommodated, there may be equipment that can be attached to the phone or implemented in the phone system that provides the needed accommodation at a very reasonable cost. Consider seeking the assistance of professionals and/or resource organizations to provide more information.

NOTE: It is important (and required by the ADA) that you continue to include your disabled employee in the discussions of his/her needs and the proposed accommodation(s).

How does the ADA require an employer to handle a performance issue with a disabled employee?

The ADA allows employers to hold employees with disabilities to the same performance standards as employees without disabilities. Therefore, performance issues should be handled in the same fashion as they would for any other employee. Ideally, the employer will have a policy or procedure in place to ensure consistency in these types of situations.

NOTE: To the extent that further accommodation could assist in addressing the performance problem of a disabled employee, it should be discussed with the employee and, if it is reasonable, it should be made.

What about those who abuse alcohol or drugs - are they protected by the ADA?

Current illegal use is not protected by the ADA. Alcoholics are protected by the ADA if they are qualified and are able to perform the essential functions of the job. Drinking alcohol, though, is not a protected activity in and of itself. Employers may prohibit the use of alcohol in the workplace and require that employees not consume alcohol, or otherwise be under its influence, during work hours. As with any other job performance issue, an employer can take corrective action, discharge or deny employment to an alcoholic whose job performance is unsatisfactory, even if the performance problems are caused by the use of alcohol.

I'm a hiring authority for a firm that is covered under the ADA. During a recent interview, an applicant asked how we would accommodate an employee with a disability. How should I have responded to him?

You should have told him that your company will make reasonable accommodation for a qualified employee with a disability. You should have also stated that you are unable to answer the question in any further detail, since the determination of whether an employee is eligible for consideration under the ADA and, if so, the appropriate type of reasonable accommodation is made on an individual (case-by-case) basis.

NOTE: You should not have asked if he has any type of disability or what accommodation he will need, if hired.

One of our employees told us she was recently diagnosed with diabetes. She's a great employee and we really care about her. How should we accommodate her?

Unless she requests accommodation, or unless it becomes clear to you that she is unable to perform the essential functions of the job without some type of accommodation, you do not have to provide any accommodation. This is often the case with disabilities, such as diabetes, that are mitigated by medication (e.g., insulin) and/or assistive devices (e.g., glasses).

NOTE: Although this employee needs no accommodation at the present time, she may require assistance as her disease progresses. Remind her that she may request reasonable accommodation at any time.

Some of our clients are old-fashioned and they just don't feel comfortable dealing with employees with disabilities. How do I handle this situation?

Explain to these clients that your employees have been selected because of the background and experience they bring to the job. Reassure them that all of your employees are qualified to perform all of the essential functions of the job. If necessary, tell them about the law and about your firm's commitment to complying with the law.

Can I request medical information to verify an employee's request for accommodation?

Yes. The ADA allows, and the EEOC recognizes the occasional need for, an employer to request medical information related to an employee's disability. Instead of asking for a diagnosis or prognosis and trying to interpret what type of accommodation is needed, it is recommended that you work with your employee to provide his/her doctor with information about the job. A copy of the job description is very helpful for this purpose. Ask that the doctor identify any restrictions the employee may have in performing the job duties. Also ask the doctor to identify possible accommodations to enable the employee to perform the essential functions of the job. If the employee's doctor is unable or unwilling to provide you with this information, you may, at the employer's expense, send the employee for an independent medical examination.

Make sure that the information from the doctor is sufficiently detailed and that you understand it. For example, if the doctor states that the employee "needs a flexible work schedule," clarify with the doctor what he/she means by flexible. This information is most helpful in determining whether the accommodation is reasonable and/or appropriate. And, finally, keep all medical information obtained in a confidential file separate from the employee's personnel file.

NOTE: In the pre-employment setting, you may not require any type of medical information or examination before you extend a conditional offer of employment.

What are some of the more common types of reasonable accommodation that employers make for employees with disabilities?

Examples of reasonable accommodation include making existing facilities readily accessible to and usable by an individual with a disability (e.g., modifying a work station or office area); providing assistive devices (e.g., amplifiers, voice activated computer systems, special lighting); modifying work schedules; providing qualified readers or interpreters; and restructuring a job (reassigning non-essential functions). If a disability precludes the employee from performing the essential functions of the job, even with an accommodation, reasonable accommodation may also include reassigning the employee to a vacant position for which the individual is qualified. There is, however, no employer obligation to create a new position or to assign an employee to another position for which he/she is not qualified.

I'd like to hire a mobility impaired attorney that I just interviewed, but I work in an older building and I don't think my firm can afford the cost of remodeling to make the modifications she will need to get around. Can we get some financial assistance?

Yes, in the form of a special tax credit. If your firm qualifies as an eligible small business, you may take a tax credit of up to $5,000 per year for accommodations that are more than $250 but less than $10,250. Any business may take a full deduction of up to $15,000 per year for removing qualified architectural or transportation barriers. Covered expenses include costs of removing barriers created by steps, narrow doors, inaccessible parking spaces, restroom facilities, and transportation vehicles. You can obtain additional information in the Department of Justice's ADA Tax Incentive Packet for Businesses. Information about the tax credits and deductions can also be obtained from your local IRS office.