The Americans with Disabilities Act (ADA) is a federal law whose goal is to ensure that people with disabilities have the same rights and opportunities as those without disabilities. The law was passed by Congress in 1990, and it prohibits discrimination against people with disabilities. It is similar in this to the prohibition of discrimination based on national origin, race, or gender in the United States. The prohibition against discrimination extends to federal, state and local government services, public accommodations, commercial facilities, and transportation.
The ADA states that employers must provide reasonable accommodations so as to make employment and the workplace accessible to their disabled employees. Businesses are also required to make reasonable accommodations to ensure access to customers with disabilities. There are penalties for failure to comply with the requirements of the law.
What Does Title I of the Americans With Disabilities Act Require?
Under Title 1 of the ADA, employers (public and private) may not discriminate against qualified individuals with a disability. A disability is defined as an impairment. An impairment can be mental or physical. The impairment must be substantially limiting to be a disability. It must substantially limit a person's ability to perform one or more major life activities. Life activities are activities that are performed on a daily basis. They include eating, walking, and lifting, among others. Not every disabled employee is covered by the ADA. To be covered, the disabled individual must be a “qualified” individual. This means someone who is capable of performing the job they hold or seek.
The ADA also requires that employers offer reasonable accommodations to qualified individuals with disabilities. Reasonable accommodations are changes in how a task is normally performed. Reasonable accommodations can include an employer's making its facility more usable. For example, an employer can provide a reasonable accommodation for an employee who uses a wheelchair. The employer can do so by changing the height of the employee's desk and equipment.
An employee is only entitled to a reasonable accommodation if the employee can perform the essential functions of their position. Employees must be able to do this regardless of whether reasonable accommodations are provided. “Essential functions” are considered those functions a person holding the job or role absolutely must be able to do.
Consider the example of an employee with arthritis, who works as an accountant. The person is in constant physical pain. However, they can perform required essential job functions, such as math computations, with or without accommodation. The employee may ask for a reasonable accommodation on account of arthritis. The law requires that the employer provide a reasonable accommodation on account of the arthritis. Assume that the arthritis inhibits the employee's ability to walk and sit. Walking and sitting are major life activities. An accommodation for arthritis may include, for example, moving the employee's work desk closer to the restroom. An accommodation may also include providing the employee with a back pillow. Another type of accommodation can be an ergonomic keyboard. Employers need not provide reasonable accommodations when doing so would unduly burden business operations.
What Does Title II of the Americans With Disabilities Act Require?
Title II of the ADA requires state and local governments to provide equal opportunities to disabled individuals to government services, programs, and activities. These include public schools, social services, state and local parks, courtrooms, and departments of motor vehicles, to name a few. The law requires that state and local governments take the following measures:
- To follow architectural standards during construction that make buildings accessible to disabled individuals;
- To relocate programs or provide access to services in buildings that are currently not accessible to disabled individuals; and
- To make any reasonable necessary modification to services, activities, or programs, unless doing so would either:
- Fundamentally change the nature of the program; or
- Result in undue and administrative burden.
With respect to public transportation, Title II requires that public transportation authorities make good faith efforts to lease or buy accessible buses. Under Title II, the government must purchase new vehicles that meet accessibility requirements. The government must take these measures unless doing so would result in an undue burden.
What Does Title III of the Americans With Disabilities Act Require?
Title III applies to private businesses and nonprofits that are generally open to the public (places of public accommodation). Such places include hotels, cleaners, and restaurants. Title III applies to commercial facilities, such as banks. Title III applies to privately owned transportation facilities, such as airports. Title III applies to landlords and building owners.
Under Title III, these above entities may not exclude, segregate, or provide unequal treatment to disabled individuals. This means these entities must, if it is not an undue burden, make buildings and services accessible to disabled individuals. Title III also requires that new buildings be constructed to be accessible. Title III requires that places of public accommodation provide auxiliary aids and services (such as interpreters or notetakers) to disabled individuals.
What are ADA Accommodations?
An accommodation is simply a modification or adjustment of some kind made to the work or retail environment or the way a job is done in order to make employment or patronage of a business accessible to disabled people.
It might also be a modification or adjustment to the hiring process made to ensure that people with disabilities are able to apply for jobs along with non-disabled people. The ADA requires employers and businesses to make accommodations that are reasonable.
What is Considered a Disability Under the ADA?
The ADA defines disability as follows:
- A disability may be “a physical or mental impairment that substantially limits major life activities or bodily functions”;
- A disability may be “a record of impairment, even if it is not classified as a medical disability”; or
- A disability may be a condition that leads to a person being “regarded as having a disability.”
Some of the particular conditions that have been found to be disabilities are as follows:
- Physical Conditions: This would include hearing impairment, vision impairment, diabetes, epilepsy, intellectual disabilities, missing limbs, cancer, cerebral palsy, HIV infection, multiple sclerosis, muscular dystrophy and mobility impairments, participation in a drug rehabilitation program;
- Mental and Emotional Conditions: autism, cerebral palsy, HIV infection, multiple sclerosis, mobility impairments, major depressive disorder, bipolar disorder, obsessive-compulsive disorder, and schizophrenia.
What is a Reasonable Accommodation Under the ADA?
Employers must make changes within reason to the workplace or a position in order to enable an employee to do their job despite their disability. Reasonable accommodations should be made to the work environment, schedule, or procedures. These changes would be designed to allow the disabled employee to perform the most important job functions and major life activities in the workplace. In a public business, the accommodation would be made to ensure access to people with disabilities.
Some examples of reasonable accommodations are:
- Physical accessibility: Existing facilities can be modified to make them more accessible to disabled employees or customers, such as installing a wheelchair ramp or modifying bathroom stalls and other spaces to be accessible to employees or customers using wheelchairs and walkers;
- Job restructuring: This might be something as simple as providing a seat to retail cashiers to use while they work;
- Modifying work schedules: this might entail modifying schedules so that disabled employees are allowed enough breaks for rest, commute times are accommodated, and the like;
- Internal reassignment to a more accommodating position: For example, an employer might move a disabled warehouse worker to a desk job;
- Accommodating hearing and visual impairment: An employer or business could provide accessible software and assistive technologies such as videophones for the deaf and hearing impaired. Or, they might provide sign language interpreters, closed captioning, large print and Braille printed materials;
- Remote work and telework: A chronically ill employee could be allowed to engage in full-time remote work or telework so they could more easily attend doctor's appointments; or
- Allowances as required: A business can simply adjust policies to allow for the presence of service animals, time off to access medical care, and similar steps.
The key is that requests for accommodations must be reasonable. The nature of the employee's work as well as the work or business environment has to be taken into consideration, and any accommodations that would impose undue hardship on the employer are not required. Making an accommodation that is exorbitantly expensive or difficult to implement would be considered an undue hardship and not reasonable.
In considering a request for an accommodation, a court would use a balancing test in which it would weigh the nature of the accommodation against the financial burden it would place on the employer. The benefit of retaining the employee is also considered. It is the employer's responsibility to exhaust every possible reasonable solution before deciding that a request creates an undue hardship.
When Must an Employer Provide a Reasonable Accommodation, and What if They Refuse?
Each jurisdiction determines the time frame in which a reasonable accommodation must be made. Some jurisdictions do not obligate an employer to make any accommodations until the disabled employee has requested an accommodation. Again, if the accommodation is reasonable, then the employer should make it. If an employer believes that an accommodation request is not reasonable and is unduly burdensome, they might want to consult an experienced employment lawyer for guidance as to how to proceed.
Other jurisdictions require the employer to make accommodations preemptively before the disabled employee requests them. Further, if an employee makes several requests for reasonable accommodations, the employer is not necessarily required to grant each and every one. However, any accommodation made would need to allow the disabled person to perform their job and the necessary activities of life in the workplace.
To complicate matters further, It may violate the ADA to assume an employee has a qualifying disability, or is substantially limited by their impairment. The ADA states that assumptions such as these could themselves qualify as workplace discrimination.
Because of this, it may be challenging or even risky for an employer to determine that there is a duty to accommodate before an employee first makes a request, indicating that they are, in fact, disabled and need accommodation of some sort.
However, It is not against the ADA to request information about a worker's disability during the hiring process. With information gathered before making a hire, employers should be able to make preemptive accommodations without violating the ADA.
If after receiving a timely request for reasonable accommodation, a person's employer refuses to make any accommodation, there are steps a person must take before filing a complaint in court. A person must make an additional attempt to ensure that their employer is aware of the request, that they understand the person's need and that it is based on their disability.
A person should explain that they have a legal right to reasonable accommodations in order to do their job, and that without the accommodation, they are not able to do so. Should the employer continue to ignore the person's request, they should consult an attorney to determine their best course of action.
The ADA has tax deductions and credits to help businesses comply. It allows a tax deduction of up to $15,000 per year for the cost associated with removing qualified architectural and transportation barriers. Also, eligible small businesses can claim a tax credit of up to 50 percent of eligible access expenditures between $250 and $10,250.
An eligible small business has gross receipts that do not exceed $1 million or a work force of no more than 30 full-time workers. Expenses that are eligible for the tax credit would be related to removing barriers, providing auxiliary aids, and purchasing or modifying equipment or devices.
What are Some Consequences for ADA Violations?
The consequences of ADA violations can include citations, fines, or an injunction. Civil penalties can run as high as $75,000 for a first violation, and up to $150,000 for a subsequent violation.
An injunction is a court order, and in the case of an ADA violation, the injunction would require the employer to correct the inadequate conditions and make a requested accommodation.
Additionally, if the patron of a business were injured because of an ADA infraction, the business owner could face a private civil lawsuit filed by the injured patron, potentially leading to personal injury liability and damages.
How Do I Stay in Compliance with the ADA?
The Equal Employment Opportunity Commission is the federal agency that enforces the ADA. The EEOC issues guidance for people and businesses about how to comply with the ADA. It is available on the EEOC's website.
One suggestion that the EEOC makes to employers is that they treat an employee who requests leave for a disability-related reason in the same way as an employee who requests leave for reasons unrelated to a disability. So, for example, if an employer gives employees 5 days of sick leave without requiring documentation, it cannot then require documentation from an employee with depression who wants to use sick time. Depression qualifies as a disability, of course.
And if an employer does not offer a leave benefit, it must still consider leave as an accommodation for disability. This is true even if the employee would not qualify for leave under the federal Family and Medical Leave Act (FMLA), or has used up the leave the employer provides. The point is that an additional period of leave should be viewed by an employer as accommodation for a disability.
A person or business would probably be well-advised to seek out consultation with an experienced employment lawyer who could do a comprehensive review of their practices as well as their employment policies and any manuals shared with employees to ensure that they are in compliance with the ADA.
How Can a Lawyer Help Me with ADA Compliance?
If you are subject to the ADA and have an issue with ADA compliance, you should contact an employment lawyer or personal injury lawyer. These attorneys can advise you on ADA requirements and what steps, if any, you can take to bring your place of business or public accommodation into ADA compliance.
An experienced discrimination lawyer is the person most qualified to help a person or business make sure that they are in compliance with the ADA. An discrimination lawyer can conduct a thorough review of your practices and advise you about changes that might be needed to comply fully with the ADA.
If you are disabled, you are entitled to specific protections outlined by the ADA. Should your employer fail to provide reasonable accommodations or terminate you for requesting them, you may have a valid legal claim against them. A knowledgeable and experienced discrimination lawyer can help you understand your rights as well as your options. Further, they will also represent you in court if necessary.
