Part 1: Americans with Disabilities Act

 Disabled employees are supposed to be protected by the Americans with Disabilities Act of 1990, but we all know that as chronically ill patients, we face discrimination on the job frequently due to our health problems.  I’ve had this happen to me repeatedly over the years; many people have been turned down for jobs because of their disabilities and many have been passed up for promotions also.  We hear about it happening all of the time and so in light of recent events (see my post Broken, Depression & Discrimination) and while the knife wound is still fresh in my back, I wanted to post some information on this act that is to protect us. 

Naturally, we can’t be protected by this act if we don’t report incidents of discrimination to employers.   But how many employers have been able to get away with this even with reports being turned in?  How many people have not been hired because of their disability and not been able to prove it?  

Here are some facts about the Americans with Disabilities Act thanks to the EEOC.gov:

• The Americans with Disabilities Act prohibits employers, employment agencies, unions, and government from discriminating against qualified individuals with disabilities in job application procedures, hiring, firing, advancement, compensation, job training, and other terms, conditions, and privileges of employment.
• The Americans with Disabilities Act covers employers who have 15 or more employees.

The ADA states that a person with a “disability” is one who:

• has a physical or mental impairment that substantially limits one or more of their major life activities.
• has a record of said impairment.
• is regarded as having said impairment.

A qualified employee or applicant with a disability is an individual who, with or without reasonable accommodation, can perform the essential functions of the job in question.  Reasonable accommodations may include:

• Making existing facilities used by employees readily accessible to disabled employees.
• Job restructuring, modified work schedules, reassigning to open positions.
• Acquiring or modifying equipment or devices, adjusting or modifying examinations, training materials, or policies, and providing qualified readers or interpreters.

An employer is required to make a reasonable accommodation to the known disability of a qualified applicant or employee if it would not impose an “undue hardship” on the operation of the employer’s business. Reasonable accommodations are adjustments or modifications provided by an employer to enable people with disabilities to enjoy equal employment opportunities. Accommodations vary depending upon the needs of the individual applicant or employee. Not all people with disabilities (or even all people with the same disability) will require the same accommodation.

According to the ADA guidelines, an employer does not have to provide reasonable accommodations if it creates undue hardships for the employer.

Undue hardship is defined as an action requiring significant difficulty or expense when considered in light of factors such as an employer’s size, financial resources, and the nature and structure of its operation.

An employer is not required to lower quality or production standards to make an accommodation; nor is an employer obligated to provide personal use items such as glasses or hearing aids.

An employer also does not have to provide a reasonable accommodation unless the disabled employee has asked for one. If an employer sees that the disabled employee’s medical condition is affecting performance or conduct issues, the employer may then ask the employee how to solve the problem and if the employee needs a reasonable accommodation.

Once a reasonable accommodation is requested, the employer and the individual should discuss the individuals needs and identify the appropriate reasonable accommodation. Where more than one accommodation would work, the employer may choose the one that is less costly or that is easier to provide.

The Americans with Disabilities Act also covers:

Medical Exams/Inquiries

An employer MAY NOT ask job applicants about the existence, nature, or severity of a disability.  Applicants CAN be asked about their ability to perform specific job functions. 

A job offer may be conditioned on the results of a medical examination, but only if the examination is required for all entering employees in similar jobs. Medical examinations of employees must be job related and consistent with the employer’s business needs.

Medical records are confidential. The basic rule is that with limited exceptions, employers must keep confidential any medical information they learn about an applicant or employee. Information can be confidential even if it contains no medical diagnosis or treatment course and even if it is not generated by a health care professional. For example, an employee’s request for a reasonable accommodation would be considered medical information subject to the ADA’s confidentiality requirements.

Illegal drug use is not covered under the ADA’s protection when an employer acts on such use.

The ADA also protects individuals from pay and promotion discrimination; an individual cannot be paid less or promoted differently due to their disability status. Included in the ADA is the prohibition of harassment of a person for their disability status. The law also prohibits retaliation against individuals who engage in protected activities, which includes asking for reasonable accommodation, seeking assistance from the EEOC, or asking that discrimination against themselves or others be stopped.

Filing A Complaint:

Part 2 at the link below covers how to file a complaint under the Americans with Disabilities Act if you feel you have been discriminated against.

Part 2:  Filing A Complaint Under the Americans with Disabilities Act