COVID as a disability

For many, COVID infection will not substantially affect a major life activity, so it won’t be a disability. Some people have no symptoms and many will have symptoms only for a short time. Some, however, will suffer with symptoms that do substantially affect a major life activity and, therefore, will have a disability.

As with any condition, whether COVID is a disability is a fact-based inquiry. Since COVID is a respiratory virus, it can affect breathing, which is a major life activity. Given its potential symptoms, COVID also may affect other major life activities, such as caring for oneself, eating, walking, concentrating, thinking, or interacting with others. It can also affect major bodily functions such as the immune, digestive, bowel, bladder, neurological, brain, respiratory, circulatory, and endocrine systems.

If an employee experiences ongoing but intermittent multiple-day headaches, dizziness, brain fog, and difficulty remembering or concentrating, which a doctor attributes to the virus, the employee is substantially limited in neurological and brain function, concentrating, and/or thinking, among other major life activities. In such situations, COVID is a disability.

If, on the other hand, an employee is asymptomatic or has mild symptoms, the symptoms would not be substantially limiting, so no disability would be involved.

The question of whether COVID (or any condition) is a disability is always based on an individualized assessment. Just because one employee’s COVID is a disability does not mean that all cases of COVID are.

COVID could also exacerbate an existing condition, such as anxiety, to the point where an employee who previously did not need an accommodation now does. While COVID might not be the disability, it caused an existing condition to become a disability.

The limitations caused by COVID do not necessarily have to last any particular length of time. Temporary conditions can be disabilities if sufficiently severe.

Mental disabilities

• A mental impairment is any mental or psychological disorder.
• Mental health issues affect many employees.

Disabilities may be physical or mental in nature, obvious or not. Mental health issues affect many employees. Some sources indicate that 75 percent of U.S. employees have a mental illness at some time during their career.

A mental impairment is any mental or psychological disorder, such as:

• Intellectual disabilities
• Organic brain syndrome
• Emotional or mental illness
• Learning disabilities

Some mental conditions include:

• Bipolar disorder
• Borderline personality disorder
• Depression
• Obsessive compulsive disorder
• Panic disorder
• Post-traumatic stress disorder
• Schizophrenia
• Seasonal affective disorder
• Anxiety disorder

Substantially limiting

• A disability is an impairment that substantially limits, or limited, one or more major life activities.
• There are rules of construction employers should follow when determining whether an impairment is substantially limiting.

An impairment is a disability under the Americans with Disabilities Act (ADA) if it substantially limits, or limited, one or more major life activities. The issue is whether an impairment substantially limits a major life activity of the person in question, not whether the impairment is substantially limiting in general. Not every impairment affects an individual’s life to the extent that it is a substantially limiting impairment. An infected finger, for example, is a minor impairment, but generally not a disability.

When determining whether an impairment substantially limits a major life activity, employers should follow the following rules of construction:

• Apply the term “substantially limits” broadly in favor of expansive coverage. Do not spend much effort on it.
• Significant or severe restriction is not required. An impairment is a disability if it substantially limits the ability of an individual to perform a major life activity as compared to most people in the general population.
  • This means as compared to other people in the general population, not to those similarly situated. For example, the ability of an individual with an amputated limb to perform a major life activity is compared to other people in the general population, not to other amputees.
  • Scientific, medical, or statistical analyses shouldn’t be needed to determine whether someone can perform a major life activity compared to most people in the general population, but may be used where appropriate.
  • Employers’ primary focus should be whether they have complied with their obligations and if discrimination has occurred, not whether an impairment substantially limits a major life activity. An extensive analysis is not necessary.
• Employers will need to perform an individualized assessment to determine whether an impairment substantially limits a major life activity.
  • Individuals do not need to be substantially limited in more than one major life activity.
  • Don’t consider mitigating measures (other than ordinary eyeglasses or contact lenses) when making a determination. It doesn’t matter if an individual chooses to forgo mitigating measures.
• It doesn’t matter if the impairment is episodic or in remission. These are disabilities if they would substantially limit a major life activity when active. Some examples include:
  • Migraines, which can be episodic, and,
  • Cancers, which can go into remission.
• Effects of an impairment lasting fewer than six months can be substantially limiting. Impairments lasting only a short period of time may be covered if sufficiently severe.

Generally, it is the effect of an impairment or condition on a particular person’s life, not the name, that determines whether a person is protected by the ADA. Some impairments, such as blindness, deafness, or HIV infection, are by their nature substantially limiting. But many other impairments may be disabling for some individuals but not for others, depending on the impact on their activities.

Medical documentation may help determine the extent to which a physical or mental impairment limits an individual’s major life activities when an impairment or need for an accommodation is not obvious. Often, medical documentation describes the restrictions that an impairment places on an individual, such as stating that the individual may not lift objects weighing more than a few pounds, cannot walk unassisted, or cannot hear. Please note that medical inquiries are restricted under the ADA, and the information is considered confidential.

Major life activities

• An impairment is a disability under the ADA if it substantially limits, or has previously substantially limited, one or more of a person’s major life activities.
• Major life activities also refer to the operation of a major bodily function.

For an impairment to be a disability under the Americans with Disabilities Act (ADA), it must substantially limit, or have previously substantially limited, one or more of a person’s major life activities. The law and regulations include a list of examples of major life activities that include, but are not limited to:

• Caring for oneself
• Performing manual tasks
• Walking
• Seeing
• Hearing
• Eating
• Speaking
• Breathing
• Sleeping
• Learning
• Working
• Sitting
• Standing
• Bending
• Lifting
• Reaching
• Reading
• Thinking
• Concentrating
• Communicating
• Interacting with others

Major life activities also include the operation of a major bodily function, such as normal cell growth, and the functions of the following systems:

• Immune
• Digestive
• Bowel
• Bladder
• Neurological
• Brain
• Respiratory
• Circulatory
• Endocrine
• Reproductive
• Special sense organs and skin
• Genitourinary
• Cardiovascular
• Hemic
• Lymphatic
• Musculoskeletal

The operation of a major bodily function includes the operation of an individual organ within a body system. Functions of the brain, for example, are part of the neurological system and may affect other body systems as well. Because impairments, by definition, affect the functioning of body systems, it should not be difficult to identify which impairments will generally affect major bodily functions. For example:

• Cancer affects an individual’s normal cell growth;
• Diabetes affects the operation of the pancreas and the function of the endocrine system; and
• HIV infection affects the immune system.

Impairments that are episodic or in remission are disabilities if they would substantially limit a major life activity when active. This includes conditions such as migraines, which can be episodic, or cancers, which can go into remission.

Record of having a disability

• A record of disability is a history of an impairment that substantially limited one or more major life activities.

Individuals are considered to have a record of a disability if they have a history of an impairment that substantially limited one or more major life activities when compared to most people in the population or were misclassified as having had such an impairment.

This includes people who have had a disabling impairment, but have recovered in whole or in part, regardless of whether they are now substantially limited.

It also includes individuals who are not — and may have never actually been — impaired, but who nonetheless have been misclassified as having a disability. Educational or other institutional documents labeling or classifying an individual as having a substantially limiting impairment would establish a “record” of a disability. If, for example, a hospital misclassifies an individual as having an intellectual disability or another substantially limiting learning disability, that individual would be covered by the Americans with Disabilities Act (ADA) because of the erroneous classification.

If employers rely on any record, such as an educational, medical, or employment record, containing disability information to make an adverse employment decision about a person who is currently qualified to perform a job, the action is subject to challenge as a discriminatory practice.

Regarded as having a disability

• Individuals who are discriminated against due to an actual or perceived impairment are protected by the ADA.

Individuals who are subjected to a prohibited action because of an actual or perceived physical or mental impairment, regardless of whether that impairment actually substantially limits a major life activity are protected by the Americans with Disabilities Act (ADA). Prohibited actions include such things as:

• Refusal to hire;
• Demotion;
• Placement on involuntary leave;
• Termination;
• Exclusion for failure to meet a qualification standard;
• Harassment; and
• Denial of any other term, condition, or privilege of employment

Congress expects broad application of this protection, and individuals should have an easy time establishing coverage. The only exception in the “regarded as” prong is for impairments that are minor and last fewer than six months (transitory).

People can establish coverage by showing that they were treated adversely because of a real or perceived impairment, without having to establish the employer’s beliefs concerning the severity of an impairment. This shifts the focus from what the employer may believe about an impairment to how an individual is treated. To qualify for coverage, an individual is not subject to any functional test. In addition, the concepts of “major life activities” and “substantial limitation” are not relevant in evaluating whether an individual is “regarded as having such an impairment.” The intent is to protect all people who are subjected to discrimination based on disability, even if they do not, in fact, have a disability or an impairment. It also reflects recognition by Congress that the reactions of others to an impairment or perceived impairment can be just as disabling as the limitations caused by an actual impairment.

Individuals may also be deemed substantially limited due to the attitudes of others. People with stigmatic conditions that constitute physical or mental impairments, but that do not by themselves substantially limit a major life activity, may still be covered by the ADA. Individuals who, for example, have experienced severe burns may have an impairment that is substantially limiting solely because of the attitudes of others, as might individuals who have a cosmetic disfigurement and are continuously refused employment due to an employer’s fears about the negative reactions of coworkers or clients.

Additionally, unimpaired people regarded as having impairments may also be covered by the ADA. Consider, for example, an individual who was rejected from employment because the employer mistakenly believed that the individual had HIV infection. Even though the individual had no impairment, the individual was regarded as having an impairment, was subject to an adverse employment action, and thus was protected by the law. To successfully argue that an employee is not regarded as having a disability, employers must be able to show that the perceived condition is both transitory and minor. Relying on only one of these factors is not enough. Some employers might want to argue, for example, that since an impairment lasted fewer than six months, it isn’t protected by the ADA. Both factors must, however, be present for the employer to win in court.

Whether a condition is minor involves considering factors such as:

• The symptoms and severity of the impairment,
• The type of treatment required,
• The risk involved,
• Whether any kind of surgical intervention is anticipated or necessary, and
• The nature and scope of any post-operative care.

For example, a broken pinky finger is hardly comparable to surgically removing a lung nodule. The latter involves surgery — which is, by definition, an invasive procedure — on a vital organ and all the risks and post-operative care this inevitably entails.

Employers shouldn’t act on assumptions

• Employers who discriminate against individuals based on actual or perceived disability are violating the ADA.

Just because an employer might believe employees have impairments that render them unable to perform job functions, it’s best not to act on assumptions.

People are regarded as having an impairment any time an employer takes a prohibited action against them due to an actual or perceived impairment, even if the employer asserts, or may ultimately establish, a defense to such action. Even if “regarded as” coverage is established, the individual must still establish the other elements of the claim, such as being qualified, and the employer may raise any available defenses. In other words, a finding of “regarded as” coverage is not itself a finding of liability.

The fact that the “regarded as” coverage requires proof of causation to show that a person is covered, however, does not mean that proving a claim is complex. While people must show, both for “regarded as” coverage and ultimate liability, that they were subjected to a prohibited action because of an actual or perceived impairment, this needs to be made only once. Thus, people making a claim under the “regarded as” coverage may demonstrate a violation of the Americans with Disabilities Act (ADA) by meeting the burden of proving that:

• They have an impairment or were perceived by an employer to have an impairment, and
• The employer discriminated against them because of the impairment in violation of the statute.

It’s worth noting that the fact that an employer’s action may have been based on an impairment does not necessarily mean that the employer engaged in unlawful discrimination. Individuals must, for example, be qualified for the job they hold or desire. Additionally, an employer may have a defense to an action taken due to an impairment if the individual would pose a direct threat or the employer’s action was required by another federal law. Employers will be held liable only when an individual proves that they engaged in unlawful discrimination under the ADA.

Drug or alcohol use

• Employers are permitted to ensure that the workplace is free from drugs and alcohol.
• Current illegal drug users are not protected under the ADA, but recovering drug addicts are.
• Alcoholics are protected under the ADA.

The Americans with Disabilities Act (ADA) specifically permits employers to ensure that the workplace is free from the illegal use of drugs and alcohol. At the same time, the ADA provides limited protection from discrimination for recovering drug addicts and for alcoholics.

Drug use

An employer may discharge or deny employment to current illegal users of drugs based on such drug use without fear of being held liable for disability discrimination. Current illegal drug users are not “individuals with disabilities” under the Americans with Disabilities Act (ADA).

The illegal use of drugs includes the use, possession, or distribution of drugs which are unlawful under the Controlled Substances Act, including the illegal use of drugs and prescription drugs that are “controlled substances.” The illegal use of drugs does not include drugs taken under supervision of a licensed health care professional, including experimental drugs for people with, for example:

• HIV infection
• Epilepsy
• Mental illness

A person taking morphine for cancer pain management, for example, is not using a drug illegally if it is taken under the supervision of a licensed physician. Similarly, participants in a methadone maintenance treatment program cannot be discriminated against by an employer based upon their lawful use of methadone.

Current illegal drug use

If an individual tests positive on a test for illegal drugs, the individual will be considered a current drug user under the ADA. “Current” drug use means that the illegal use of drugs occurred recently enough to justify an employer’s reasonable belief that involvement with illegal drugs is an ongoing problem. It is not limited to the day of use, or recent days or weeks, in terms of an employment action. It is determined on a case-by-case basis.

Although the ADA excludes individuals currently engaged in illegal drug use, it does not exclude:

• Individuals who have a record of drug use, or
• Individuals who are erroneously regarded as engaging in drug use.

Nonetheless, an individual who has a record of illegal drug use or was erroneously regarded as engaging in drug use is not automatically an individual with a disability. An employer must still evaluate whether the record or the erroneous perception pertains to a substantially limiting impairment. Only addiction or perceived addiction to a controlled substance meets this standard. If an employer does not regard an individual as an addict, but as a social user of illegal drugs, the individual may not be “regarded as” an individual with a disability and would not be protected by the ADA.

However, while a person who currently illegally uses drugs is not protected by the ADA, people who are addicted to drugs, but are no longer using them and are receiving treatment, or former drug addicts who have been rehabilitated successfully are protected by the ADA from discrimination on the basis of past drug addiction.

To ensure that drug use is not recurring, an employer may request evidence that an individual is participating in a drug rehabilitation program or the results of a drug test. A rehabilitation program may include:

• Inpatient treatment
• Outpatient treatment
• Employee assistance programs
• Recognized self-help programs such as Narcotics Anonymous

Alcohol use

Alcoholics are generally considered individuals with a disability and are protected by the Americans with Disabilities Act (ADA). To be entitled to an accommodation consideration, they need not be recovered or in rehabilitation, but they must be qualified to perform the essential functions of a job.

An employer may, however, discipline, discharge, or deny employment to alcoholics whose alcohol use adversely affects job performance or conduct to the extent that they are not “qualified.” If, for example, an alcoholic employee is often late to work or unable to perform the responsibilities of the job because the employee is under the influence of alcohol, as opposed to obtaining treatment for the condition, an employer may take disciplinary action on the basis of poor job performance and conduct. While employers may hold alcoholics to the same standard as other employees, they may not discipline an alcoholic employee more severely for the same performance or conduct.

Can pregnancy be a disability?

• Pregnancy, by itself, is not a disability, but impairments related to pregnancy are covered by the ADA.

A somewhat common issue is when employers will not make accommodations for pregnant employees and instead terminate the employees or force them to go on leave. Although pregnancy itself is not considered a disability, pregnant employees may have impairments related to their pregnancies that qualify as disabilities under the Americans with Disabilities Act (ADA). Several pregnancy-related impairments are likely to be disabilities despite being temporary, such as:

• Pregnancy-related carpal tunnel syndrome
• Gestational diabetes
• Pregnancy-related sciatica
• Preeclampsia

Employers may not discriminate against an individual whose pregnancy-related impairment is a disability under the ADA. This includes providing a reasonable accommodation, unless the accommodation would result in significant difficulty or expense (“undue hardship”).

Pregnant employees are also protected under the federal Pregnancy Discrimination Act (PDA).

What conditions are not disabilities?

• There are many conditions that are not impairments, and therefore not disabilities.

Not all conditions are impairments, and therefore disabilities. The Americans with Disabilities Act (ADA) provides some specific exemptions, such as:

• Environmental, cultural, and economic disadvantages,
• A prison record, or
• Lack of education.

Illegal behaviors that are generally not disabilities include:

• Compulsive gambling
• Kleptomania
• Pyromania
• Psychoactive substance use disorders resulting from current illegal drug use.

Simple physical characteristics that are also not impairments include:

• Eye or hair color
• Left-handedness
• Height or weight within a normal range.

Nonetheless, at extremes, such deviations may constitute impairments, and some individuals may have underlying physical disorders that affect their height, weight, or strength. Severe obesity, which has been defined as body weight more than 100 percent over the norm, has been ruled to be an impairment by some courts. Other courts have ruled, however, that to constitute an ADA impairment, a person’s obesity, even morbid obesity, must be the result of a physiological condition.

A physical condition that is not the result of a physiological disorder, such as pregnancy, or a predisposition to a certain disease would not be an impairment. Additionally, a predisposition to developing illnesses or diseases due to factors such as environmental, economic, cultural, or social conditions does not amount to an impairment.

Like physical characteristics, common personality traits are not considered impairments under the ADA. If, for example, the psychological profile of an applicant for a police officer position determined that the applicant “showed poor judgment, irresponsible behavior, and poor impulse control,” but did not have “any particular psychological disease or disorder,” the applicant’s personality traits would not constitute an impairment.

Overall accommodation process

• Employers should understand and document the overall accommodation process.
• It is vital that employers know how to recognize accommodation requests.
• The interaction process is meant to be ongoing.

To help lay the groundwork for dealing with reasonable accommodation situations, employers should understand and document the overall process. This includes crafting written policies and procedures, training managers and supervisors, informing all employees, recognizing and responding to accommodation requests, creating a process for determining effective accommodation requests, and monitoring the accommodations.

Craft written policies and procedures

When crafting related policies and procedures, employers should consider factors such as:

• Company culture;
• Desired outcomes;
• Who has input;
• Who will be responsible for the policy, procedure, and process; and
• The reasons behind them.

To help craft effective policies and procedures, employers should:

• Talk to stakeholders for input on crafting the policies and procedures;
• Listen to what they have to say and ask questions;
• Keep the policies flexible and easy to understand;
• Try to avoid jargon, acronyms, and legal-speak;
• Work to ensure that they inform the reader effectively; and
• Include definitions of terms used and resources available, including where to find additional information.

Train managers and supervisors

While training supervisors and managers regarding the Americans with Disabilities Act (ADA) and reasonable accommodations is not mandated by law, doing so can help protect the company should it face a claim. Initial training is a good start, but because ADA-related situations do not arise frequently and the training is eventually lost, refresher training should be done regularly.

Two of the vital pieces of the ADA that managers and supervisors should be trained on are:

• How to recognize a request for a reasonable accommodation, and
• That applicant and employee medical information is to be kept confidential.

One of the purposes of the training should be to enable all employees to gain optimum job performance and productivity levels through the application of reasonable accommodations. The training also helps demonstrates that the company takes disability inclusion seriously.

Inform all employees

Employers should let all affected employees know about the ADA, even if at different levels of detail. While employees might not benefit from knowing the details of what the ADA requires, they would benefit from knowing how to request accommodations and what to expect.

Recognize and respond to accommodation requests

Employers and managers and supervisors should be able to recognize when an applicant or employee requests an accommodation. At the most basic level, an accommodation request is when an applicant or employee asks for a workplace change or adjustment because of a medical condition. The request does not need to include any particular terms, such as “ADA” or “accommodation.”

Create an interactive process for identifying effective accommodations

The interactive process is when a company representative and an applicant or employee work together focusing on identifying an effective reasonable accommodation. Shutting down this process, or not starting one, can be considered discrimination, and many court cases have included such actions.

Interactive process

• The interactive process is when employers and employees work together to find a reasonable accommodation.
• The ADA does not have a formula or prescribed method for an interactive discussion.
• Employees and employers are required to engage in the interactive process.

When an employee requests an accommodation, an employer’s Americans with Disabilities Act (ADA) obligations are triggered, including the interactive process. The interactive process is when employers and employees who request accommodations work together to identify an effective reasonable accommodation. Employers should engage in this process even if they believe the request is unreasonable or the employee is not qualified for the position.

Before engaging in the interactive process, it may be beneficial to review the employee’s position description to ensure that:

• The description accurately reflects the essential functions of the position;
• Quality and quantity requirements are stated, if appropriate;
• Behavioral factors necessary for the job are considered in measurable terms; and
• An ADA job evaluation has been performed, noting how the physical duties are functionally performed and the behavioral characteristics essential for job performance.

The ADA does not have a formula or prescribed method for an interactive discussion between the employer and the individual after a change due to a medical condition has been requested. The exact nature of the dialogue will vary.

While not mandated, the basic interactive process can include the following:

1. Recognizing an accommodation request,
2. Gathering information,
3. Exploring accommodation options,
4. Choosing an accommodation,
5. Implementing the chosen accommodation, and
6. Monitoring the accommodation to ensure it continues to be effective.

In many instances, both the disability and the type of accommodation required will be obvious, and there may be little or no need for discussion.

In other situations, the disability and/or the need for accommodation may not be obvious, and to identify an effective accommodation, employers may need to:

• Ask questions concerning the nature of the disability and the individual’s functional limitations; or
• Ask for reasonable documentation about the employee’s or the applicant’s disability and limitations, meaning only documentation that establishes:
  • A person has an ADA disability, and
  • The disability necessitates a reasonable accommodation.

Recognizing accommodation requests

When an individual makes it known that an adjustment or change is needed at work due to a medical condition and a work-related barrier, this is an accommodation request under the Americans with Disabilities Act (ADA).

Employees or applicants may ask for an accommodation in a variety of ways. They might, for example,

• Allude to the need for accommodation during ordinary workplace conversations, or
• Provide a doctor’s note that excuses absences for a medical reason or places restrictions on their ability to perform certain job tasks.

The request does not need to mention terms like “ADA” or “reasonable accommodation,” and it does not need to be in writing. An employer may, however, ask for something in writing to document the request.

Under the ADA, individuals may request an accommodation at any time during the application process or while they are employed. They can request an accommodation even if they did not ask for one when applying for a job or after receiving a job offer. Once employees or applicants request an accommodation, employers must:

• Respond appropriately
• Discuss the individual’s needs
• Identify the appropriate reasonable accommodation

If employers are unsure whether an employee has requested an accommodation, they may ask for clarification on what is being requested and why.

Managers and supervisors may need to be able to recognize an accommodation request, as they are usually on the front line working with employees.

While employers are not required to ask whether a reasonable accommodation is needed when an employee has not asked for one, they may still ask if they reasonably believe that the employee may need an accommodation. Also, employers should initiate the reasonable accommodation interactive process without being asked if they:

• Know the employee has a disability;
• Know, or have reason to know, that the employee is experiencing workplace problems because of the disability; and
• Know, or have reason to know, that the disability prevents the employee from requesting a reasonable accommodation.

If employees state that they do not need a reasonable accommodation, employers will have fulfilled their obligation.

As important as it is to recognize a request for accommodation, employers must also know what is not considered a request for accommodation under the ADA. It is not, for example, a request for accommodation when:

• An applicant voluntarily self-identifies as an individual with a disability for affirmative action purposes under Section 503 of the Rehabilitation Act, or
• An employee discloses a disability, but there is no connection to a work-related barrier or specific request.

Gathering information

Once an accommodation request is received, employers may gather information necessary to process the request. Employers may ask questions to help make an informed decision. This includes asking what type of reasonable accommodation is needed.

While individuals with disabilities do not need to be able to specify the precise accommodation, they do need to describe the problems posed by the workplace barrier. Additionally, suggestions from the individuals with disabilities may assist in determining the type of reasonable accommodation to provide.

If the disability and/or the need for accommodation is not obvious, employers may ask for reasonable documentation about the disability and functional limitations. Employers may require only the documentation that is needed to establish that a person has an ADA disability and that the disability necessitates a reasonable accommodation.

Questions to consider during the process include:

• What limitations is the employee experiencing?
• How do these limitations affect the employee and the employee’s job performance?
• What specific job tasks are problematic because of these limitations?
• What accommodations are available to reduce or eliminate these problems?
• Are all possible resources being used to determine possible accommodations?
• Has the employee been consulted regarding possible accommodations?
• Once accommodations are in place, would it be useful to meet with the employee to evaluate the effectiveness of the accommodations and determine whether additional accommodations are needed?
• Do supervisory personnel and employees need training?

Employees are required to engage in the interactive process as well as employers. Part of this process could include providing information for an employer to determine the extent of the employee’s disability and the breadth of potential accommodations that might be reasonably afforded. If employees fail to participate, their ADA protections could be at stake.

Exploring accommodations

Once employers have identified an employee’s workplace issue and the limitation causing it through the interactive process, they are ready to explore accommodation options. This is the time to brainstorm and consider what might work, and employers should be open to new ideas and ways of doing things.

The employee who requested the accommodation is a good place to start, so employers should always invite the employee to suggest accommodations. If more accommodation ideas are needed, they may ask the employee’s medical provider for ideas. In some cases, medical professionals can suggest effective accommodations. In other cases, they may not be able to suggest ideas, but may be able to say whether ideas under consideration will help overcome the employee’s limitations.

If employees know of an accommodation that will allow them to perform the essential functions of the job, they must share it. Reasonable accommodations must be determined on a case-by-case basis because workplaces and jobs, like people, vary. Not all people with disabilities, or even all people with the same disability, will require the same accommodation.

Accommodations may involve:

• Changes to workplace policies, procedures, or practices;
• Physical changes to the workplace; or
• Extra equipment.

Types of accommodations can include:

• Providing leave or breaks,
• Making the work facility accessible,
• Providing personal assistance,
• Allowing service or emotional support animals,
• Providing interpreters, and
• Additional accommodations as technology advances.

Employers should look to many resources for input on identifying an effective accommodation, such as:

• The employee or applicant
• The individual’s health care provider
• Condition-specific agencies
• Other experts

A health care provider is not mandated to identify a reasonable accommodation, but might have some input on the employee’s limitations. Employers might not know if a particular accommodation will be effective, but should feel free to try one out on a temporary basis to see the results. If it works, great. If not, look for another that will be effective.

Choosing an accommodation

Although not required by the Americans with Disabilities Act (ADA), choose the employee’s preference whenever possible if there are multiple accommodation options. The employer, however, makes the decision and may choose, for example, the lowest-cost accommodation so long as the chosen accommodation is effective.

When an accommodation is identified, implement it by:

• Installing equipment,
• Providing training,
• Informing managers or supervisors,
• Involving outside services, or
• Communicating with essential personnel about the accommodation.
  • ADA confidentiality rules dictate that only managers and supervisors should know about the accommodation, if necessary.

Employers are free to provide an accommodation on a trial basis and stop it if it does not work. One thing they might consider when testing accommodations is to make a written agreement, or at least a memo, with the employee that:

• The accommodation is being tested,
• How long the test will be, and
• What will happen if the accommodation does not work.

That way, no one is surprised when the accommodation is revisited down the road.

Monitoring the accommodation

Because changes occur, employers may need to periodically check on the ongoing effectiveness of accommodations. If equipment is involved in the accommodation, someone may need to perform maintenance or upgrades as needed. Encouraging ongoing communication is the most important way to monitor accommodations, and employees who are receiving accommodations need to understand:

• That they should let their employer know if there are changes or problems with the accommodation, and
• Who, specifically, to contact.

A common misconception is that once an effective accommodation is implemented, the decision is final. The interactive process, however, is meant to be ongoing. Accommodations are not guaranteed to last forever, and there are times when some maintenance or adjustments may be needed. Employers should make sure to reassess whether the chosen accommodation remains effective and encourage the employee or applicant to let them know if the accommodation’s effectiveness begins to decrease. At this phase, employers should restrict questions about the condition and focus on the solution and its level of effectiveness.

Accommodations are individualized and may be continuous or temporary. Even a long-term reasonable accommodation may not be permanent. If an accommodation no longer meets the disability-related need or begins to pose a hardship, employers are obligated to explore alternative ideas. Of course, with all related actions, they should document what was done, when, why, where, how, etc.

Types of accommodations

• Employers have many accommodation ideas from which to choose.

Accommodation ideas are limited only by the imagination. Some accommodation ideas include:

• Providing/Modifying equipment
• Providing accessible materials
• Making changes to the physical workplace
• Restructuring jobs
• Modifying work schedules
• Providing breaks
• Allowing remote work
• Modifying supervisory methods
• Allowing service or emotional support animals
• Reassigning the employee
• Providing transportation
• Modifying tests, exams, or training
• Providing qualified readers
• Providing interpreters
• Providing leave Reassignment to a different position is a last resort accommodation.

An employee’s limitation will generally dictate the accommodation. For example, an employee with long COVID might have shortness of breath with exertion. Accommodations might, therefore, include the following:

• Reduce physical exertion;
• Allow rest breaks;
• Reduce workplace triggers, if any;
• Allow time for medical treatment such as use of a nebulizer or inhaler;
• Restructure the job to remove marginal job functions; or
• Develop an action plan to deal with sudden exacerbations.

An employee who suffers from fatigue might benefit from the following accommodations:

• Allow rest breaks,
• Provide an ergonomic workstation,
• Allow a flexible schedule, or
• Restructure the job to remove marginal job functions.

Employees who deal with brain fog (for example caused by long COVID), might need the following accommodations:

• Provide a quiet work space;
• Allow use of noise cancellation or white noise;
• Provide uninterrupted work time;
• Provide memory aids such as flowcharts and check lists;
• Allow the use of apps for concentration, memory, and organization;
• Allow rest breaks; or
• Restructure the job to remove marginal functions to allow focus on essential job duties.

The following accommodations might be effective for employees with headaches:

• Reduce workplace triggers, if any;
• Provide alternative lighting;
• Reduce glare; or
• Allow flexible scheduling.

A particular conditions does not mean that a limited list of effective accommodations is available. Much will depend upon the employee’s particular limitations in relation to the job’s essential functions. Identify the barriers between them and find ways to break the barriers down or eliminate them.

Employees with mobility limitations might need to have the workplace be made more accessible. Someone with a hearing impairment might need a translator. Each situations must be dealt with on its own merits. That’s why the interactive process is so important; it deals with the specific facts involved.

Providing/Modifying equipment

Purchasing equipment or modifying existing equipment is a form of reasonable accommodation. All employees need the right tools and work environment to effectively perform their jobs. Similarly, individuals with disabilities may need workplace adjustments to maximize the value they can add to the organization.

Many devices are available that make it possible for people to perform essential job functions. These devices range from very simple solutions, such as an elastic band that can enable a person with cerebral palsy to hold a pencil and write, to “high-tech” electronic equipment that can be operated with eye or head movements by people who cannot use their hands.

Employers are obligated to provide only equipment that is needed to perform a job; there is no obligation to provide equipment that the individual uses regularly in daily life, such as glasses, a hearing aid, or a wheelchair. However, employers may be obligated to provide items of this nature if special adaptations are required to perform a job.

Providing accessible materials

Employers may have to make written materials accessible to an individual with a disability who may not be able to read or understand them. Simple accommodations could include having someone read a list of employee conduct rules to an employee with a visual impairment or providing a simpler explanation of the rules for an employee with a cognitive disability.

Making changes to the workplace

Making changes to the facilities or work areas is a form of reasonable accommodation. This includes the physical barriers covered by the ADA accessibility standards. Employers need to make existing facilities used by employees readily accessible for employees with disabilities, such as making work areas accessible for approach, entry, and exit so people using wheelchairs can enter and back out of the area. This includes working areas as well as non-working areas such as break rooms, lunchrooms, training rooms, and restrooms.

Restructuring the job

Job restructuring includes shifting responsibility to other employees for minor tasks (or “marginal functions”) that an employee is unable to perform because of a disability and altering when and/or how a task is performed. It may involve reallocating or redistributing the marginal functions of a job. However, employers are not required to reallocate essential functions of a job as a reasonable accommodation under the ADA. Essential functions, by definition, are those that a qualified individual must perform, with or without an accommodation. If the workforce is small and all workers must be able to perform a number of different tasks, job restructuring may not be possible.

Even though the ADA does not require employers to reallocate essential functions as a reasonable accommodation, they may do so if they wish. An individual may be reassigned to a lower-graded position if there are no accommodations that would enable the employee to remain in the current position and there are no vacant equivalent positions for which the individual is qualified (with or without a reasonable accommodation).

Employers are not, however, required to maintain the reassigned individual with a disability at the salary of a higher-rated position if employers do not do so for reassigned employees who do not have a disability. It should further be noted that employers are not required to promote an individual with a disability as an accommodation.

Modifying work schedules

Modifying work schedules may involve adjusting arrival or departure time, providing periodic breaks, or altering when certain job tasks are performed. Employers should consider modification of a regular work schedule as a reasonable accommodation unless this would cause an undue hardship. Modified work schedules may include flexibility in work hours or the workweek, or part-time work, where this will not be an undue hardship.

A modified schedule may also involve allowing an employee to use accrued paid leave or providing additional unpaid leave. Employers must provide a modified or part-time schedule when required as a reasonable accommodation, absent undue hardship, even if they do not provide such schedules for other employees.

Providing breaks

Providing an employee with breaks can be seen as a reasonable accommodation involving a modified work schedule. Sometimes, however, breaks can be short and rather infrequent, not really reaching the level of a schedule change.

Working from home (Telework)

Many employers have discovered the benefits of allowing employees to work from home through telework (also known as telecommuting) programs, particularly since the COVID-19 pandemic.

Not all persons with disabilities need — or want — to work from home, and not all jobs can be performed at home. However, allowing an employee to work at home may be a reasonable accommodation where the person’s disability prevents successfully performing the job on-site and the job, or parts of the job, can be performed at home without causing significant difficulty or expense. To deny a request to work from home, employers must be able to show that attendance is an essential function for the particular job in question.

If an employee is working from home for a certain period, perhaps during a pandemic, you may ask employees if they will need reasonable accommodations in the future when they return to the workplace. Employers may ask employees with disabilities to request accommodations that they believe they may need when they return to the physical workplace, basically by beginning the interactive process.

Before allowing anyone to return to work (or even after they do return), employers may make information available to all employees about who to contact — if they wish — to request accommodation for a disability that they may need upon return to the workplace, even if no date has been announced for their return. If requests are received in advance, you may begin the interactive process.

Modifying supervisory methods

Simple modifications of supervisory methods may include communicating assignments in writing rather than orally for someone whose disability limits concentration or providing additional day-to-day guidance or feedback. Employers are not required, however, to change someone’s supervisor.

Making policy modifications

Modifying a workplace rule because of an employee’s disability may be a form of reasonable accommodation. Reasonable accommodation requires only that you modify the policy for an employee who requires such action because of a disability; however, you may continue to apply the policy to all other employees.

Granting time off or adjusting a work schedule may involve modifying leave or attendance procedures or policies. Similarly, you may need to modify a policy prohibiting animals in the workplace so that a visually impaired person can use a guide dog.

Allowing service animals or emotional support animals

Another type of accommodation is to allow employees to bring service animals or emotional support animals to work with them. Many individuals with disabilities use animals to help them perform some functions. Most people are familiar with seeing-eye dogs, for example.

A service animal and an emotional support animal are defined differently and apply in different situations. A service animal is specifically defined by the public accessibility provisions of the ADA, but not in the employment provisions.

An emotional support animal, on the other hand, is a companion animal that provides therapeutic benefit to an individual with a disability. Since the employment provisions of the ADA do not define a service animal or restrict accommodations to service animals as defined for public accessibility, employers may have to consider allowing an employee to bring an animal that does not meet the definition of a service animal into the workplace. This could include a therapy or emotional support animal. However, employers don’t have to allow an employee to bring any animal into the workplace if it is not needed because of a disability or if it disrupts the workplace or otherwise poses an undue hardship.

Even if employers have a no-pet policy, allowing a service or emotional can be a reasonable accommodation, because making exceptions to workplace policies can be an accommodation.

Service animals assist persons with a variety of disabilities in their day-to-day activities. Some examples include the following:

• Alerting persons with hearing impairments to sounds.
• Pulling wheelchairs or carrying and picking up things for persons with mobility impairments.
• Assisting persons with mobility impairments with balance.

Service animals are not pets — they perform some of the functions that people with disabilities cannot do for themselves.

Some service animals, but not all, wear special collars, harnesses, or other identification signaling that it is a service animal and not a pet. Some, but not all, are licensed or certified and have identification papers.

No registry of service animals exists, so you can’t simply look up whether a particular service animal is registered.

Reassigning the employee

Reassignment is generally the reasonable accommodation of last resort. Reassignment may be necessary where an employee can no longer perform his or her job because of a disability. The employee must be qualified for the new position, however. This means that the employee

• Satisfies the skill, experience, education, and other job-related requirements of the position, and
• Can perform the primary job tasks of the new position, with or without reasonable accommodation.

The employee does not need to be the best qualified individual for the position.

Providing transportation

Other forms of accommodation may involve making transportation provided by the employer accessible. Employers must consider accommodations related to commuting problems. It does not matter if the employee is fully able to perform his job without the need for accommodations once he or she gets to work.

Generally, it is not always an employer’s responsibility to provide an employee with transportation to and from work. However, an employee’s disability may interfere with his or her ability to get to work.

Modifying tests, exams, or training

Employers may be required to modify, adjust, or make other reasonable accommodations in the ways that tests and training are administered in order to provide equal employment opportunities for qualified individuals with disabilities.

Accommodations may be needed to assure that tests or examinations measure the actual ability of an individual to perform job functions, rather than reflecting limitations caused by the disability. The ADA requires that tests be given to people who have sensory, speaking, or manual impairments in a format that does not require the use of the impaired skill, unless that is the job-related skill the test is designed to measure.

Employers have an obligation to inform job applicants in advance that a test will be given, so that an individual who needs an accommodation can make such a request.

Providing qualified readers

When an applicant or employee has a visual disability, employers and the individual should use the interactive process to identify specific limitations of the individual in relation to specific needs of the job and to assess possible accommodations. It may be a reasonable accommodation to provide a reader for an individual with a disability, if this would not impose an undue hardship.

In some job situations, a reader may be the most effective and efficient accommodation, but in other situations alternative accommodations may enable an individual with a visual disability to perform job tasks just as effectively.

Where reading is an essential job function, depending on the nature of a visual impairment and the nature of job tasks, print magnification equipment or a talking computer may be more effective and less costly than providing another employee as a reader. Where an individual has to read lengthy documents, a reader who transcribes documents onto tapes may be a more effective accommodation.

Providing interpreters

Providing an interpreter on an “as-needed” basis may be a reasonable accommodation for a person who is deaf in some employment situations, if this does not impose an undue hardship.

A person who with a hearing impairment should be able to communicate effectively with others as required by the duties of the job. Identifying the needs of the individual in relation to specific job tasks will determine if or when an interpreter may be needed. The resources available to employers would be considered in determining whether it would be an undue hardship to provide such an accommodation.

People with hearing impairments have different communication needs and use different modes of communication. Some use signing in American Sign Language (ASL), but others use sign language that has different manual codes. Some people rely on an oral interpreter who silently mouths words spoken by others to make them easier to lip-read. Many hearing-impaired people use their voices to communicate, and some combine talking and signing. The individual should be consulted to determine the most effective means of communication.

Leave as an accommodation

• Allowing an employee to take leave can be a form of reasonable accommodation.
• Leave provided under the ADA is job protected.
• Leave can be provided as an accommodation when no other accommodations are effective.

Allowing an employee to use accrued paid leave and providing additional unpaid leave can be a form of reasonable accommodation. Such leave could be in large blocks of time or on an intermittent or reduced schedule basis.

Similar to the Family and Medical Leave Act (FMLA), leave provided under the Americans with Disabilities Act (ADA) is job protected, but the ADA does not include an “equivalent” position provision; employers are expected to return employees to the jobs they had before leave began. The concept of leave as an accommodation might be confusing because it doesn’t align with the idea of providing an accommodation that keeps an employee on the job. The goal in allowing the use of leave, however, is to provide an employee the opportunity to manage the condition and ultimately remain in the workforce.

Leave could be provided as an accommodation when:

• No other accommodation is effective,
• The employee is not eligible for leave under the FMLA or has exhausted the FMLA leave, or
• The employee has exhausted paid time off and required additional leave.

If employers have a leave policy, they should ensure it is flexible. If, for example, they provide employees with up to three months of company leave for a medical condition, but a particular employee needs three months and two weeks of leave, they would need to consider allowing the additional two weeks as a reasonable accommodation. Generally, if the leave does not pose an undue hardship, employers might have a hard time arguing why they did not provide it. An inflexible leave policy can risk a very expensive claim, as such policies would apply to all employees, constituting a systemic issue.

How much leave is reasonable remains a matter of debate. At least one court, the 7th Circuit, has ruled that extended leave is not reasonable. Perhaps a few weeks or intermittent leave would be in that jurisdiction.

Otherwise, the amount of leave is limited only by how much leave would prove to be an undue hardship.

Unlimited leave, however, is not considered reasonable. If an employee is unable to provide at least an estimated return-to-work date, employers need not provide the leave as an accommodation.

Undue hardship

• Employers do not have to provide a particular accommodation if it would pose an undue hardship.
• Employers should try to find another accommodation that would not pose an undue hardship.

Employers must provide a reasonable accommodation if a person with a disability needs one to apply for a job, perform a job, or enjoy benefits equal to those offered to other employees. Employers do not, however, have to provide any accommodation that would pose an undue hardship.

Undue hardship means that providing the accommodation would result in significant difficulty or expense, based on an employer’s resources and the operation of the business. While the “undue hardship” provision considers the financial realities of the particular employer, the concept of an undue hardship is not limited to financial difficulty and may refer to any accommodation that would be:

• Excessively costly
• Extensive
• Substantial
• Disruptive
• Fundamentally altering the nature or operation of the business

Determinations of undue hardship must be based on an individualized assessment of current circumstances that show a specific reasonable accommodation would cause significant difficulty or expense. If providing a particular accommodation would result in undue hardship, employers should consider whether another accommodation exists would not.

Employers may not claim undue hardship based on employees’ or customers’ fears or prejudices toward the individual’s disability. Similarly, undue hardship cannot be claimed because providing the accommodation might have a negative impact on the morale of other employees. Employers may, however, be able to show undue hardship where providing an accommodation would be unduly disruptive to other employees’ ability to work.

Essential functions

• Essential functions are the fundamental tasks required to perform a job.

The Americans with Disabilities Act (ADA) prohibits discrimination against individuals with disabilities who are otherwise qualified and can, with or without reasonable accommodation, perform the essential functions of the job. Essential functions are defined as tasks which are fundamental to performance of the job, rather than marginal tasks, responsibilities, or duties that may customarily be performed on the job, but are not essential to the job’s central functions.

Once the essential functions for a position are identified, employers may then put in place qualification standards, selection criteria, or employment tests that are designed to determine whether an employee or applicant can perform those essential functions.

Because the determination of whether individuals with disabilities are qualified is based on whether they can perform, with or without reasonable accommodation, the essential functions of a job, it is beneficial for employers to create, maintain, and use written job descriptions when making employment decisions. However, the job description will not be given greater weight than other relevant evidence in an ADA-related case.

Qualification standards

• Employers use qualification standards to know who can perform a job effectively.
• If employers use qualification standards to screen out people with disabilities, they are violating the ADA.

A qualification standard, selection criteria, or employment test that screens out or tends to screen out a person with a disability or a class of people with disabilities violates the Americans with Disabilities Act (ADA) unless an employer can show that one of the following affirmative defenses are met:

• The standard, criteria, or test is “job related and consistent with business necessity;”
• There is no accommodation that would enable the person to meet the existing standard; or
• There is no alternative approach, which is itself a form of accommodation, through which the employer can determine whether the person can perform the essential function.

The ADA does not prohibit an employer from establishing job-related qualification standards, including:

• Education;
• Skills;
• Work experience;
• Licenses or certification;
• Physical and mental abilities;
• Health and safety; or
• Other job-related requirements, such as judgment, ability to work under pressure, or interpersonal skills.

The ADA does not interfere with employers’ authority to establish job qualifications, so they can hire:

• Individuals who can perform jobs effectively and safely, and
• The best qualified people for the job.

The ADA requirements are designed only to ensure that people with disabilities are not excluded from jobs which they can perform.

Job related and consistent with business necessity

When establishing selection criteria, the standard, test, or other criteria must be job related, meaning that it must be a legitimate measure of qualification for the specific job it is being used for. The qualification standard cannot be a measure of qualifications for a general class of jobs. For example, a qualification standard of “ability to take shorthand dictation” for a secretarial job that actually transcribes taped dictation is not job related.

If a test or other selection criterion excludes an individual with a disability because of the disability and does not relate to the essential functions of a job, it is not consistent with business necessity. Employers may establish physical or mental qualifications that are necessary to perform specific jobs or to protect health and safety. As with other job qualification standards, however, if a physical or mental qualification standard screens out an individual with a disability or a class of individuals with disabilities, employers must be prepared to show that the standard is job related and consistent with business necessity.

Recruiting

• Job advertisements should include information indicating that an employer doesn’t discriminate.

Job advertisements should include information indicating an employer does not discriminate, such as: “We are an Equal Opportunity Employer. We do not discriminate on the basis of race, religion, color, sex, age, national origin, or disability.”

The job information should be available to all individuals, including those with disabilities, and should be accessible to people with different disabilities. While employers are not obligated to provide written information in various formats in advance, they should make it available in an accessible format upon request.

A reasonable accommodation statement is often included in:

• Job postings
• Online applications
• Employee handbooks
• Reasonable accommodation policies

Many employers are using artificial intelligence (AI) to help streamline their hiring practices and make them more effective. This could include job applicant screening programs and/or facial-recognition software. Using AI, interviews can be analyzed by:

• Advanced machine learning
• Facial expressions
• Word choice evaluated by a series of algorithms

The use of such technology should not, however, impede an employer’s Americans with Disabilities Act (ADA) compliance goals.

Applications

• Employers are required to give applicants with disabilities a reasonable accommodation if they need one to complete the application process.

A critical area related to hiring which must be addressed under the Americans with Disabilities Act (ADA) is the treatment and processing of job applicants. Employers may tell applicants what the hiring process involves (e.g., an interview, timed written test, or job demonstration), and unless employers can show undue hardship, they are required to provide a reasonable accommodation to otherwise qualified applicants with disabilities that will enable them to have an equal opportunity to participate in the application process and to be considered for a job.

Individuals with disabilities who meet initial requirements to be considered for a job should not be excluded from the application process because employers speculate, based on a request for reasonable accommodation for the application process, that they will be unable to provide the individual with reasonable accommodation to perform the job.

Online application systems must also provide equal opportunities to qualified individuals with disabilities. In designing application forms, employers should keep in mind that individuals with disabilities may have trouble filling out paper or electronic forms. In such situations, employers must be ready to provide an effective reasonable accommodation so the applicant can provide them with the information requested on the application form.

Interviews

Employers should ensure the interview process is not a source of discrimination when hiring new employees. The interview is open to bias due to interviewer rating errors, and employers should not only prepare for the interview, but ensure that others involved are prepared as well.

The job interview should focus on the ability of an applicant to perform the job, not on disabilities. Employers shouldn’t turn down an applicant because of a real or potential impairment.

Medical inquiries and exams

• The ADA has strict requirements when it comes to employers requesting medical inquiries and exams.

The Americans with Disabilities Act (ADA) does not prevent employers from obtaining medical and related information necessary to:

• Evaluate the ability of applicants and employees to perform essential job functions, or
• Promote health and safety on the job.

However, to protect individuals with disabilities from actions based on such information that is not job related and consistent with business necessity, including protection of health and safety, the ADA imposes specific and differing obligations at three stages of the employment process:

• Before making a job offer, employers may not make any medical inquiry or conduct any medical examination.
• After making a conditional job offer, but before a person starts work, employers may make unrestricted medical inquiries, but may not refuse to hire an individual with a disability based on results of such inquiries, unless the reason for rejection is job related and justified by business necessity.
• After employment begins, any medical examination or inquiry required of an employee must be job related and justified by business necessity.
  • Exceptions exist for voluntary examinations conducted as part of employee health programs and examinations required by other federal laws.

A “medical examination” is a procedure or test that seeks information about an individual’s physical or mental impairments or health. The following factors should be considered to determine whether a test (or procedure) is a medical examination:

• Whether the test is administered by a health care professional,
• Whether the test is interpreted by a health care professional,
• Whether the test is designed to reveal an impairment or physical or mental health,
• Whether the test is invasive,
• Whether the test measures an employee’s performance of a task or measures his or her physiological responses to performing the task,
• Whether the test normally is given in a medical setting, and
• Whether medical equipment is used.

Medical examinations include, but are not limited to, the following:

• Vision tests conducted and analyzed by an ophthalmologist or optometrist;
• Blood, urine, and breath analyses to check for alcohol use;
• Blood, urine, saliva, and hair analyses to detect disease or genetic markers (e.g., for conditions such as sickle cell trait, breast cancer, Huntington’s disease);
• Blood pressure screening and cholesterol testing;
• Nerve conduction tests (i.e., tests that screen for possible nerve damage and susceptibility to injury, such as carpal tunnel syndrome);
• Range-of-motion tests that measure muscle strength and motor function; • Pulmonary function tests (i.e., tests that measure the capacity of the lungs to hold air and to move air in and out);
• Psychological tests that are designed to identify a mental disorder or impairment; and
• Diagnostic procedures such as x-rays, computerized axial tomography (CAT) scans, and magnetic resonance imaging (MRI).

Counseling may also be considered a medical exam.

Compensation and benefits

• The ADA prohibits discrimination regarding compensation and benefits.

The Americans with Disabilities Act (ADA) prohibits discrimination based on disability regarding compensation and benefits, such as:

• Rates of pay;
• Other forms of compensation; and
• Fringe benefits available by virtue of employment, regardless of employer administration.

Employers may not reduce pay to an employee with a disability due to:

• The elimination of a marginal job function, or
• A provided reasonable accommodation.

Subminimum wages

An exception is found under the Fair Labor Standards Act (FLSA), which currently authorizes employers, after receiving a certificate from the Department of Labor’s Wage and Hour Division, to pay special minimum wages — wages less than the federal minimum wage — to workers with disabilities for the work being performed.

A worker who has disabilities for the job being performed is one whose earning or productive capacity is impaired by a physical or mental disability, including those relating to age or injury. Disabilities that may affect productive capacity include blindness, mental illness, intellectual disabilities, cerebral palsy, alcoholism, and drug addiction. The following, taken by themselves, are not considered to be disabilities for purposes of paying special minimum wages: education disabilities, chronic unemployment, receipt of welfare benefits, nonattendance at school, juvenile delinquency, and correctional parole or probation. The subminimum wage provision in the FLSA does not apply unless the disability actually impairs the worker’s earning or productive capacity for the work being performed. The fact that a worker may have a disability is not in and of itself sufficient to warrant the payment of a special minimum wage.

Employers must obtain an authorizing certificate from the Wage and Hour Division prior to paying these special minimum wages. Employers must submit a properly completed application (Form WH-226-MIS, Application for Authority to Employ Workers with Disabilities at Special Minimum Wages). Certificates covering employees of work centers and patient workers normally remain in effect for two years. Certificates covering workers with disabilities placed in competitive employment situations or School Work Exploration Programs (SWEPs) are issued annually.

Special minimum wages must be commensurate wage rates — based on the worker’s individual productivity, no matter how limited, in proportion to the wage and productivity of experienced workers who do not have disabilities performing essentially the same type, quality, and quantity of work in the geographic area from which the labor force of the community is drawn. The key elements in determining commensurate rates are: Determining the standard for workers who do not have disabilities, the objective gauge against which the productivity of the worker with a disability is measured.

Determining the prevailing wage — the wage paid to experienced workers who do not have disabilities for the same or similar work and who are performing such work in the area. Most SCA contracts include a wage determination specifying the prevailing wage rates to be paid for work on the SCA contract.

Evaluating the quantity and quality of the productivity of the worker with the disability.

All special minimum wages must be reviewed and adjusted, if appropriate, at periodic intervals. At a minimum, the productivity of hourly paid workers must be reevaluated every six months, and a new prevailing wage survey must be conducted at least every 12 months.

Generally, workers subject to the FLSA, SCA, and/or PCA must be paid overtime at least 11/2 times their regular rate of pay for all hours worked over 40 in a workweek. Minors younger than 18 years of age must be employed in accordance with the youth employment provisions of the FLSA and PCA. Neither the FLSA nor PCA have provisions requiring the payment of fringe benefits. Workers paid special minimum wages, however, must receive the full fringe benefits listed on the wage determination when performing work subject to the SCA.

Each worker with a disability and, where appropriate, the parent or guardian of such worker, shall be informed orally and in writing by the employer of the terms of the certificate under which such a worker is employed.

Overtime

In addition to paying those with disabilities less than the minimum wage, blanket policies that prohibit or limit overtime for employees with disabilities can also cause issues. For example, if employers have a policy whereby employees on light duty cannot work any overtime, and an employee with a disability that does not limit the number of hours he can work is denied the opportunity to work overtime under such a policy, this may be a violation of the ADA. Employees with disabilities are more likely to be assigned to light duty, and therefore, the policy would tend to have a disproportionate impact on employees with disabilities.

Another question about overtime might be whether its mandatory performance can be considered an essential function. This is something each employer would need to determine on the basis of the specifics involved, but courts have ruled that it can be. The District Court of Nebraska, for example, found that overtime was an essential function and the employer did not need to exempt an employee from working it as an accommodation (McNeil v. Union Pacific RR, No18-cv-02333, May 2018).

If overtime is an essential function, you will not need to eliminate it under the ADA. However, the time off that the employee cannot work overtime may be protected by the Family and Medical Leave Act (FMLA).

Offering a modified work schedule is a type of accommodation, so generally, you must consider excusing employees with disabilities from working overtime, unless you can show that the ability to work overtime is a qualification standard or an essential job function. The requirement to work overtime must be a legitimate qualification for the specific job the requirement is used for and must relate to the essential functions.

Employers need to be able to show why overtime is required, and not automatically assume that it is an essential function. Analyze the job in question with a focus on the following:

• Are all employees in a particular position required to work overtime?
• If the overtime were removed, would the job fundamentally change?
• If the employee did not work overtime, would the operation of the business be significantly impacted (e.g., staffing)?
• Is there a way to allow an employee to work overtime if an accommodation can be provided to make it more feasible (breaks, a stool, etc.)?
• Would employees not restricted from working overtime be open to working more overtime?
• Can the overtime be worked at a different time (to help avoid conflicts with medical treatment)?
• If the overtime is not an essential function, employers would need to consider an exception to overtime if it would not pose an undue hardship. If overtime is an essential function, could the employee be reassigned to an alternative, vacant position that does not require overtime?

Employers also need not disregard overtime provisions in a collective bargaining agreement (CBA).

Employee drug and alcohol testing

• Tests for illegal drugs do not violate the ADA and can be performed at random.
• Alcohol tests are medical exams and may not be performed at random.

Employers do not violate the Americans with Disabilities Act (ADA) if they use drug tests to find out if employees are currently using illegal drugs, and because drug tests are not medical exams, they may be performed at random. Employees may be required to take a drug test.

Tests to determine employee blood alcohol levels, however, are medical exams, and they may not be performed at random. They may be required only when employers have a reasonable belief, based on objective evidence, that a particular employee is:

• Unable to perform the job’s essential functions because of a medical condition, or
• Posing a direct threat because of a medical condition.

Employers may prohibit employees from being under the influence while on the job or at the workplace.

Often, employers perform drug testing for safety reasons. Some employers are required to be drug-free workplaces and, while the requirements to not include testing, such testing can help keep a workplace drug free.

Employers should give any employee subject to drug testing an opportunity to provide information about lawful drug use that may cause a result that shows drug use. Employers may do this by asking before the test is administered whether the employee takes medication that could cause a positive result, or they may ask all employees who test positive for an explanation.

If employers believe an employee’s drug use, history of drug use, or treatment for drug addiction could interfere with the safe and effective performance of their job, employers may be required to engage in an interactive process and provide reasonable accommodation if doing so would eliminate the safety or performance concerns and would not cause an undue hardship.

Once employers inform an employee about their concerns regarding the employee’s drug use or history of such use, it is the employee’s responsibility to ask for a reasonable accommodation if they want one. Employers never have to lower production or performance standards, eliminate essential functions (fundamental duties) of a job, pay for work that is not performed, or excuse illegal drug use on the job as a reasonable accommodation.

If employers fear an employee’s use of legal drugs will compromise workplace safety and they want to rely on the direct threat defense, they must show that, based on an individualized assessment, the employee’s drug use poses a significant risk to the safety of the employee, other employees, or the public before taking an adverse action.

The ADA does not prohibit employers from complying with applicable federal, state, or local laws regulating when and how drug tests may be used, what drug tests may be used, and confidentiality. Drug tests must be conducted to detect only illegal use of drugs. Some tests for illegal use of drugs, however, may also reveal the presence of lawfully used drugs, even if unintentionally.

The ADA restricts when employers may ask about legal drug use (prescription or over the counter), as such an inquiry would likely reveal a disability. In such situations, the employee might indicate that he has a legal prescription, but employers need not take the employee’s word for it. Employers may verify that what the employee is saying is true. Therefore, it helps to have tests that look only for illegal drugs. Employers may check with the employee’s doctor to verify the drug use is legal. Don’t ask for more information than that.

Regarded as

Excluding employees from a job based on erroneously regarding them to be an addict currently using drugs illegally, when a drug test revealed the presence of a lawfully prescribed drug, employers would be liable under the ADA. To avoid such potential liability, employers would have to determine whether the individual was using a legally prescribed drug.

Performance and employment standards

• The ADA’s nondiscrimination provisions apply to all employment practices.
• Employers may require that employees both with and without disabilities must meet the same performance standard of essential functions.

The Americans with Disabilities (ADA)’s nondiscrimination provisions apply to all employment practices, including:

• Job assignments
• Job classifications
• Organizational structures
• Position descriptions
• Lines of progression
• Seniority lists

These generally spring from performance and employment standards established by the organization. Employment decisions concerning an employee should be based on objective factual evidence about the particular individual, not on assumptions or stereotypes about the individual’s disability.

The ADA generally does not impinge on the right of employers to define jobs and evaluate their employees according to consistently applied standards governing performance and conduct. Under the law, employees with disabilities must meet qualification standards that are job related and consistent with business necessity, and they must be able to perform, with or without reasonable accommodation, the essential functions of the job. Employers may apply the same quantitative and qualitative requirements for performance of essential functions for employees both with and without disabilities.

Although an employee’s disability typically has no bearing on performance or conduct, sometimes a disability may contribute to performance or conduct problems. In these cases, a simple reasonable accommodation often may be all that is needed to eliminate the problem.

If an employee cannot meet a specific qualification standard because of a disability, the ADA requires that employers demonstrate the importance of the standard by showing that it is job related and consistent with business necessity. This requirement ensures that the qualification standard is a legitimate measure of an individual’s ability to perform an essential function of the specific position the individual holds or desires. If employers cannot show that a particular standard is job related and consistent with business necessity, they may not use the standard to take an adverse action against an individual with a disability.

Employers may have to provide a “reasonable accommodation” to enable an individual with a disability to meet a qualification standard that is job related and consistent with business necessity or to perform the essential functions of her position.

Sometimes, in response to a lower performance rating, employees will reveal they have a disability that is causing the performance problem. This does not, however, mean that employers need to change the lower rating.

When an employee requests a reasonable accommodation in response to a discussion or evaluation of the employee’s performance, employers may proceed with the discussion or evaluation but also should begin the “interactive process” by discussing with the employee how the disability may be affecting performance and what accommodation the employee believes may help to improve it.

Employers may not refuse to discuss the request or fail to provide a reasonable accommodation as punishment for the performance problem. If a reasonable accommodation is needed to assist an employee in addressing a performance problem caused by a disability, and employers refuse to provide one, absent undue hardship, they will have violated the ADA.

Conduct standards

Employers may discipline an employee with a disability for violating a conduct standard. If the disability does not cause the misconduct, employers may hold the individual to the same conduct standards they apply to all employees. In most instances, an employee’s disability will not be relevant to any conduct violations.

The Americans with Disabilities Act (ADA) generally gives employers a wide latitude to develop and enforce conduct rules. Under the ADA, the only requirement when disciplining an employee whose disability causes a conduct rule violation is that the conduct rule:

• Must be job related and consistent with business necessity, and
• The employer must hold other employees to the same standard.

The ADA does not protect employees from the consequences of violating conduct requirements, even when the conduct is caused by the disability.

Certain conduct standards that exist in all workplaces and cover all job types will always meet this standard, such as:

• Prohibitions on violence
• Threats of violence
• Stealing
• Destruction of property

Similarly, employers may prohibit insubordination toward supervisors and managers, and require that employees show respect for, and deal appropriately with, clients and customers.

Whether the application of a conduct rule to an employee with a disability is job related and consistent with business necessity may rest on several factors, including the:

• Manifestation or symptom of a disability affecting an employee’s conduct,
• Frequency of occurrences,
• Nature of the job,
• Specific conduct at issue, and
• Working environment.

These factors may be especially critical when the violation concerns disruptive behavior which, unlike prohibitions on stealing or violence, is more ambiguous concerning exactly what type of conduct is viewed as unacceptable.

If employees state that their disability is the cause of the conduct problem or request accommodation, employers may still discipline the employees for the misconduct, assuming that the conduct rule at issue is job related and consistent with business necessity. If the appropriate disciplinary action is termination, the ADA would not require further discussion about the employees’ disability or request for reasonable accommodation.

If the discipline is something less than termination, employers may ask about the disability’s relevance to the misconduct, or if the employee thinks there is an accommodation that could help avoid future misconduct. If an accommodation is requested, employers should begin the interactive process to determine whether one is needed to correct a conduct problem, and, if so, what accommodation would be effective.

Generally, it is inappropriate for employers to focus discussion about a performance or conduct problem on an employee’s disability. The point of employer comments should be a clear explanation of the employee’s performance deficiencies or misconduct and what employers expect the employee to do to improve. Moreover, emphasizing the disability risks distracting from the focus on performance or conduct, and in some cases could result in a claim under the ADA that employers regarded, or treated the individual as having a disability.

Light duty

Some employers reserve light duty positions for employees with occupational injuries, particularly those involving workers’ compensation. If employees with disabilities who are not occupationally injured become unable to perform the essential functions of their job, and there is no other effective accommodation available, the Americans with Disabilities Act (ADA) requires employers to reassign employees to vacant, reserved light-duty positions as a reasonable accommodation if:

• They can perform its essential functions, with or without a reasonable accommodation; and
• The reassignment would not impose an undue hardship.

The ADA does not require employers to create a light duty position, nor does it prohibit employers from creating a light-duty position for an employee. Employers may recognize a special obligation arising out of the employment relationship to create a light-duty position for an employee when the employee has been injured while performing work, and as a consequence, is unable to perform his or her regular job duties. Such a policy, on its face, does not treat an individual with a disability less favorably than an individual without a disability, nor does it screen out an individual on the basis of disability.

Employers may not use disability as a reason to refuse to create a light-duty position when an employee is injured on the job.

Employers need not create a light-duty position for a non-occupationally injured employee with a disability as a reasonable accommodation. The principle that the ADA does not require employers to create positions as a form of reasonable accommodation applies equally to the creation of light-duty positions. Employers must, however, provide other forms of reasonable accommodation required under the ADA.

In some cases, the only effective reasonable accommodation available for an individual with a disability may be similar or equivalent to a light-duty position. Employers would have to provide that reasonable accommodation unless they can demonstrate that doing so would impose an undue hardship.

Employers that reserve light duty positions for employees with occupational injuries must consider reassigning an employee with a non-occupational injury to such positions as a reasonable accommodation. If an employee with a disability who is not occupationally injured becomes unable to perform the essential functions of the job, and there is no other effective accommodation available, employers must reassign the employee to a vacant reserved light duty position if the employee can perform its essential functions with or without reasonable accommodations and the reassignment would not impose an undue hardship.

Employee medical inquiries and exams

• Employers are restricted from making medical inquires or requiring medical exams of employees

In order for a medical exam or inquiry to be made of an employee, it must be job related and consistent with business necessity. The need for the exam may be triggered by some evidence of problems related to job performance or safety, or an exam may be necessary to determine whether individuals in physically demanding jobs continue to be fit for duty.

Generally, this means employers have a reasonable belief, based on objective evidence, that a particular employee is unable to perform an essential function or will pose a direct threat because of a medical condition. The scope and manner of any inquiries or medical examinations must be limited to information necessary to determine whether the employee is able to perform the essential functions of the job or can work without posing a direct threat.

Employers may require employees to recertify the ongoing need periodically or annually for accommodation but request updated/new medical information only under limited circumstances. Remember, under the ADA, employers may not ask disability-related questions of employees unless those questions are job related and consistent with business necessity.

If, for example, an employee who has a long-term or permanent medical impairment has been accommodated for some time and there is no change in either the medical impairment, limitations, need for accommodation, ability to perform job duties, or the employer’s ability to accommodate, then asking questions about the continuing need for accommodation, or requesting updated/new medical documentation, will not meet the job-related-and-consistent-with-business-necessity standard.

When employers do not have sufficient disability-related information, or there is a significant change that will impact the provision of reasonable accommodation, then it can be appropriate to request information from employees about their ongoing need for accommodation.

If the initial request for accommodation did not indicate a duration for the need for accommodation, employers may request that the employee obtain a note from their healthcare provider that confirms the accommodation is still needed, and for what duration. Employers could ask if the need for accommodation is long-term, permanent, or temporary, and the anticipated duration.

When there is a change in the ability to provide a specific accommodation, it makes sense to re-engage in the interactive process when it is determined that a particular accommodation must be discontinued because it is no longer reasonable or poses an undue hardship.

Confidentiality

The Americans with Disabilities Act (ADA) imposes very strict limitations on the use of information obtained from medical examinations and inquiries of applicants and employees. All such medical information must be collected and maintained on separate forms, in separate medical files, and must be treated as confidential medical records. Employers should not place any medical-related material in an employee’s personnel file.

Employees, however, may voluntarily share their medical information with others. If an employee voluntarily discloses medical information and the need for reasonable accommodation, employers are held to the confidentiality provisions and may not disclose the condition or the employee’s need for accommodation to others, except in the limited exceptions listed earlier. The confidentiality provisions apply to former employees, as well.

The confidentiality provisions also apply in regard to an employee’s occupational injury or workers’ compensation claim.

The ADA contains no provision requiring employers to notify employees that a coworker has a disability or condition. To the contrary, it restricts employers from disclosing medical information about applicants and employees, even if the situation involves communicable diseases.

If employers have concerns about the potential transmission of a communicable disease, they should contact public health authorities that have the expertise to advise about the nature of the transmission and the risks.

Pandemics

Direct threat is an important Americans with Disabilities (ADA) concept during a pandemic. Direct threat is to be determined based on the best available objective medical evidence. The guidance from CDC or other public health authorities is such evidence.

Whether a pandemic rises to the level of a direct threat depends on the severity of the illness. If the CDC or state or local health authorities determine that a pandemic is significantly more severe, it could pose a direct threat. The assessment by the CDC or public health authorities provides the objective evidence needed for a disability-related inquiry or medical examination.

During the COVID pandemic, for example, the CDC and public health authorities indicated that it met the direct threat standard.

Employers may mandate that employees be vaccinated without violating the ADA, but they must also comply with the reasonable accommodation requirements.

When it comes to vaccination mandates, employers may require an individual with a disability to meet a qualification standard applied to all employees, such as a safety-related standard requiring a vaccination, if the standard is job related and consistent with business necessity as applied to that employee.

Employers do not have to show that a qualification standard in general (i.e., as applied to all employees) meets the “business necessity” standard. Under the ADA they must satisfy this standard only as applied to an employee who informs the employer that a disability prevents compliance. 

If a particular employee cannot meet such a safety-related qualification standard because of a disability, employers may not require compliance for that employee unless they can demonstrate that the individual would pose a “direct threat” to the health or safety of the employee or others while performing their job. 

The Family and Medical Leave Act (FMLA)

• Although the FMLA and the ADA can both involve medical leave, leave is handled differently.
• Employees may be entitled to both FMLA leave and additional leave as an ADA accommodation.

Although the Family and Medical Leave Act (FMLA) and the Americans with Disabilities Act (ADA) can both require a covered employer to grant medical leave to an employee in certain circumstances, the FMLA leave provisions are different from the reasonable accommodation obligations under the ADA.

ADA’s “disability” and FMLA’s “serious health condition” and “serious injury or illness” are different concepts and must be analyzed separately. An ADA “disability” is:

• An impairment that substantially limits one or more major life activities,
• A record of such an impairment, or
• Being regarded as having an impairment.

An FMLA “serious health condition” is an illness, injury, impairment, or physical or mental condition that involves inpatient care or continuing treatment by a health care provider.

The FMLA entitles employees to take up to 12 weeks of leave in a 12-month leave year period for reasons the ADA does not. Employees may, for example, take FMLA leave to care for a family member or to bond with a healthy child through birth, adoption, or foster care. Under the ADA, leave may be a reasonable accommodation only if the employee us unable to perform the job’s essential functions. Employees do not take leave under the ADA to care for family members or for bonding with children.

If employees request time off for a reason related or possibly related to a disability (e.g., “I need six weeks off to get treatment for a back problem”), employers should consider this a request for both ADA reasonable accommodation and FMLA leave. To decide whether employees are entitled to reasonable accommodation because they also have a covered disability, employers may:

• Require FMLA certification; and
• Make additional disability-related inquiries, if necessary.

The FMLA requires employers to maintain employees’ group health plan coverage during FMLA leave on the same conditions as coverage would have been provided if the employee had been continuously employed during the leave period. This includes family or dependent coverage. The employee must pay his or her share of the premiums. Employers may not discriminate against an employee using FMLA leave, and therefore must also provide such an employee with the same benefits (e.g., life or disability insurance) normally provided to an employee in the same leave or part-time status.

The ADA, however, does not require maintenance of health insurance unless other employees receive health insurance during leave under the same circumstances. The coverage must be on the same terms normally provided to those in the same leave or part-time status.

Under both the FMLA and the ADA, employees may take leave intermittently or on a reduced schedule. This is assuming the leave is for the employee’s own condition, otherwise, the ADA would not apply.

At the end of the 12 weeks of FMLA leave entitlement, an employer is required under FMLA to reinstate employees:

• In the same or an equivalent position that they held when leave commenced, and
• With equivalent pay, benefits, and other terms and conditions.

Under the ADA, if employers provide leave as a reasonable accommodation, they must return the employee to the same position; the ADA does not include an “equivalent position” provision.

If an employee were unable to perform the essential functions of that equivalent position because of a disability, the ADA may require the employer to make a reasonable accommodation at that time.

Providing more leave, even after the 12 weeks of FMLA leave, has been considered a reasonable accommodation under the ADA. How much leave is reasonable will depend upon how much leave would pose an undue hardship.

The Health Insurance Portability and Accountability Act (HIPAA)

• HIPAA works to protect the privacy of individually identifiable health information.

The Health Insurance Portability and Accountability Act (HIPAA) privacy and security provisions apply to:

• Medical providers that transmit information electronically,
• Health care clearinghouses, and
• Group health plans.

It works to protect the privacy of individually identifiable health information. These rules apply to employers in their activities as group health plan sponsors, but not in their activities as employers.

Employers must treat applicant and employee medical information as a confidential medical record, including medical information that is:

• From voluntary health or wellness programs, and
• Voluntarily disclosed.

The U.S. Department of Health and Human Services (HHS), which enforces the HIPAA privacy provisions, does not have statutory authority to regulate employers. Therefore, it is beyond the scope of the HIPAA regulations to prohibit employers from requesting or obtaining protected health information. The ADA confidentiality provisions, however, do apply to employers.

If employers receive a request for a reasonable accommodation, they may require reasonable documentation about the employee’s disability and the functional limitations that require the reasonable accommodation, if the disability and the limitations are not obvious. If the medical information comes from a HIPAA-covered entity such as a health care provider directly to an employer, the health care provider may require a HIPAA disclosure authorization from the employee.

If an employer-sponsored group health plan is closely linked to an employer, the group health plan may be subject to ADA confidentiality restrictions, as well as the HIPAA privacy regulations.

Workers’ compensation laws

• Workers’ compensation laws mandate employer-provided insurance to protect employees’ income when they are injured on the job.
• The ADA does not consider injured workers as a protected job class, but does protect occupationally injured workers who have a disability per the ADA.

State workers’ compensation laws mandate employer-provided insurance coverage to protect employees’ incomes when their ability to work is impaired due to injury on the job. It covers:

• Medical costs
• Lost wages
• Compensation for permanent injury
• Rehabilitation

The Americans with Disabilities Act (ADA), on the other hand, provides protection from discrimination based on disability. While the ADA does not recognize injured workers as a separate protected class, it does protect occupationally injured workers who:

• Are qualified,
• Can perform the job with or without reasonable accommodation, and
• Have a disability as defined by the ADA.

Employees receiving benefits under workers’ compensation or other disability laws do not necessarily have a disability under the ADA.

Though workers’ compensation law and the ADA have different purposes, they both address employment issues for people with disabilities. The overlap of the two laws can have implications for employers, either:

• When hiring a new employee, or
• When considering employment options for a worker who was injured on the job.

Employers must consider what steps are reasonable to avoid increased workers’ compensation liability, while at the same time preventing exclusion of people with disabilities from jobs they can safely perform.

As a general rule, employers are prohibited from asking applicants about their workers’ compensation history before making a conditional offer of employment. After a conditional job offer, employer may ask about workers’ compensation history in a medical examination that is required of all job applicants in the same job category.

Employers are prohibited from basing an employment decision on speculation that an applicant may cause increased workers’ compensation costs.

The Genetic Information Nondiscrimination Act (GINA)

• The GINA makes it unlawful for employers to discriminate based on genetic information.

The Genetic Information Nondiscrimination Act of 2008 (GINA) makes it unlawful for employers to use certain genetic information to discriminate against employees or applicants.

The interplay between the GINA and the Americans with Disabilities Act (ADA) is in a condition’s manifestation status. The GINA prohibits discrimination based on an individual’s genetic information, especially when the information indicates that a disease may manifest itself in the future. The ADA, on the other hand, prohibits discrimination based on a disability, which is an impairment that substantially limits a major life activity. The condition has already manifested itself.

Employers who treat individuals as if they have a disability based on genetic information may have issues under both laws.

Additionally, the ADA does not specifically prohibit employers from obtaining medical information, including genetic information, from post-offer job applicants, while the GINA prohibits employers from requesting or obtaining genetic information, including family medical history, from applicants or employees. Employers are also prohibited from obtaining genetic information through medical examinations used to document:

• Disabilities
• Reasonable accommodations
• Fitness for duty

The GINA regulations recognize that employers have legitimate reasons for requesting information that could fit the definition of “genetic information” and provide a number of exceptions. The exceptions also recognize that employers may inadvertently acquire genetic information.

An employee who provides documentation to support a request for reasonable accommodation under the ADA might offer genetic information which was not requested. To be considered “inadvertent,” an employer would need to provide an employee or health care provider with a warning, indicating not to provide genetic information.

Any genetic information acquired, even unintentionally, must be maintained as a confidential record to the same extent as medical information under the ADA.

Rehabilitation Act of 1973

Section 501 of the Rehabilitation Act of 1973 prohibits employment discrimination against individuals with disabilities in the federal sector.

Section 503 of the Rehabilitation Act requires employers with federal contracts or subcontracts that exceed $10,000, and contracts or subcontracts for indefinite quantities (unless the purchaser has reason to believe that the cost in any one year will not exceed $10,000), to take affirmative steps to hire, train, and promote qualified individuals with disabilities.

The regulations implementing Section 503 make clear that this obligation to take affirmative steps includes the duty to refrain from discrimination in employment against qualified individuals with disabilities. Contracts and subcontracts that are exempt from Section 503 include those:

• Not exceeding $10,000;
• For work that is performed outside the U.S.; and
• With state or local governments, except for the specific government entity that participates in work on or under the contract.

Section 508 requires access to electronic and information technology provided by the federal government. The law applies to all federal agencies when they develop, procure, maintain, or use electronic and information technology. Federal agencies must ensure that this technology is accessible to the employees and members of the public with disabilities to the extent it does not pose an “undue burden.”

Covered employers must take affirmative steps to employ qualified individuals with disabilities, including recruitment, hiring, rates of pay, upgrading, and selection for training. All covered contractors and subcontractors must also include a specific equal opportunity clause in each of their nonexempt contracts and subcontracts.

In addition, covered federal contractors and subcontractors must make reasonable accommodations for the known physical or mental limitations of qualified individuals with disabilities, unless providing an accommodation would create an undue hardship. “Reasonable accommodation” might be as simple as providing a magnifying screen for a computer monitor, installing a wheelchair ramp, or may be more substantial.

Medical examinations and pre-employment inquiries

It is generally unlawful for the contractor to require pre-offer medical examinations or to make inquiries as to whether an applicant or employee is an individual with a disability or as to the nature or severity of such disability.

The contractor, however, may make pre-employment inquiries into the ability of an applicant to perform job-related functions, and/or may ask an applicant to describe or to demonstrate how, with or without reasonable accommodation, the applicant will be able to perform the duties of the job.

The contractor may also require a medical examination or make an inquiry after making an offer of employment but before the applicant begins his duties, and may condition the employment offer on the results of such examination, if all entering employees into the same job category are subjected to such examination or inquiry. In addition, the contractor may require a medical examination or make an inquiry of an employee if it is job-related and consistent with business necessity.

Affirmative action program

Under Section 503, each employer that has a federal contract or subcontract of $50,000 or more and 50 or more employees must prepare, implement, and maintain a written affirmative action program covering each of its establishments.

The employer must review and update the program annually and must make it available for inspection by any employee or applicant for employment, as well as by the Office of Federal Contract Compliance Programs (OFCCP).

Section 503 regulations apply to state and local government entities which have contracts with the federal government if the state or local government entity participates in work on or under the contract or subcontract. Unlike coverage of private sector employers, the government entity but not the government as a whole becomes subject to Section 503 and its regulations when it enters into the contract.

Waivers from Section 503

The Deputy Assistant Secretary may grant a waiver from the requirements of Section 503 in the following circumstances:

• For specific contracts, subcontracts or purchase orders, if special circumstances in the national interest require such an exemption;
• For facilities not connected to performance of the federal contract, upon the written request of the contractor, if certain conditions listed in the regulations are met. This type of waiver will terminate, at the very latest, two years after the date on which the waiver is granted, and earlier under certain specific circumstances; and
• Contracts and subcontracts involving national security, if the head of the contracting agency determines both that (1) the contract is essential to national security, and (2) noncompliance with a particular requirement of the Executive Order or the regulations with respect to the process of awarding the contract is essential to national security.

The law covers all types of electronic and information technology in the federal sector and is not limited to assistive technologies used by people with disabilities. It applies to all federal agencies when they develop, procure, maintain, or use such technology.

Filing complaints

The OFCCP ensures that companies doing business with the federal government comply with their contractual obligations to provide equal employment opportunity and to develop positive programs to recruit, hire, and promote qualified individuals with disabilities.

Complaints may be filed with OFCCP within 300 days from the date of the alleged discrimination, unless the time for filing is extended by OFCCP.

Disability discrimination complaints filed with OFCCP are considered charges filed simultaneously under the ADA whenever the complaints also fall within the ADA’s jurisdiction. OFCCP will act as EEOC’s agent in processing the ADA component of the charge. OFCCP will transfer to EEOC all disability discrimination complaints over which it does not have jurisdiction. OFCCP will investigate and process all of the Section 503/ADA complaints not transferred to EEOC.

If OFCCP’s investigation reveals a violation, the agency will attempt to conciliate with the contractor, often entering into a conciliation agreement. A conciliation agreement may include a job offer, back pay, reinstatement, promotion or reasonable accommodation.

If the investigation results in a finding of no violation, OFCCP will issue both a finding of no violation and a right-to-sue letter under the ADA, and will close the complaint. Complainants may request a right-to-sue letter earlier in the process.

Covered contractors and subcontractors are required to take all necessary actions to ensure that no one attempts to intimidate or discriminate against any individual for filing a complaint or participating in a proceeding under Section 503.

Similar to the ADA, Section 504 of the Rehabilitation Act of 1973 protects qualified individuals from discrimination based on their disability. The nondiscrimination requirements of Section 504 apply to employers and organizations that receive financial assistance from any Federal department or agency, including the U.S. Department of Health and Human Services (DHHS). These organizations and employers include many hospitals, nursing homes, mental health centers and human service programs.

Section 504 prohibits organizations and employers from excluding or denying individuals with disabilities an equal opportunity to receive program benefits and services. It defines the rights of individuals with disabilities to participate in, and have access to, program benefits and services.

Other laws

• Some laws that interact with the ADA involve equal pay, reemployment.
• State laws also need to be considered.

Laws that deal with issues such as employee pay and reemployment may also intertwine with the Americans with Disabilities Act (ADA). Employers must also consider any applicable state laws.

The Equal/Fair Pay Acts

The federal Equal Pay Act, as amended by the Lilly Ledbetter Fair Pay Act (LLFPA) allows employees to file wage discrimination claims on the basis of disability as well as other protected classes. The LLFPA also changed the statute of limitations for such claims.

Each paycheck (or other compensation, such as a bonus payment) is a new discriminatory act. This means that the statute of limitations can begin on the date of any paycheck, including the initial paycheck and the final paycheck, which could encompass decades of employment. Employees have the option of filing a claim throughout the course of employment, regardless of how long ago a discriminatory decision was made. Federal law requires employers to keep payroll records for only three years, but without them, fighting a fair pay claim could be a challenge.

The Uniformed Services Employment and Reemployment Rights Act (USERRA)

While the employment provisions of the Americans with Disabilities Act (ADA) protect individuals with disabilities, including veterans with service-connected disabilities, the Uniformed Services Employment and Reemployment Rights Act (USERRA) provides reemployment rights for employees who take leave to perform military service and return to their civilian jobs, with or without service-connected disabilities.

The USERRA prohibits employers from discriminating against employees or applicants based on their military status or obligations. Both the USERRA and the ADA require employers to make reasonable accommodations for veterans with disabilities, but the USERRA goes further by requiring employers to make reasonable efforts to help a veteran who is returning to employment become qualified for a job, regardless of whether the veteran has a service-connected disability. This could include providing training or retraining for the position.

The National Labor Relations Act (NLRA)

The National Labor Relations Act (NLRA) protect the rights of employees and employers, to encourage collective bargaining, and to curtail certain private sector labor and management practices. Employees covered by the NLRA are afforded certain rights to join together to improve their wages and working conditions, with or without a union.

Employers might have issues related to the relationship between collective bargaining agreements and such matters as undue hardship, reassignment to a vacant position, the determination of what constitutes a vacant position, and the confidentiality requirements of the ADA.

In regard to the relationship between obligations under the NLRA and the ADA, the National Labor Relations Board’s (NLRB) general counsel stated that the ADA impacts bargaining because a collective bargaining agreement that has the effect of discriminating against applicants or employees with disabilities would violate the ADA, and thus, a union or employer could demand bargaining during the term of a contract to remove provisions which have such an unlawful effect.

Employers may wish to negotiate in all collective bargaining agreements a provision permitting the employer to take all actions necessary to comply with the ADA to avoid the conflicts referenced by the NLRB general counsel.

Unfortunately, many conflicts exist between an employer’s obligations under collective bargaining agreements governed by the NLRA and the obligations imposed on employers by the ADA. The issues and conflicts that can arise include the following:

• Is it a breach of an employer’s duty of confidentiality under the ADA to disclose an employee’s disability to the union or a employee without a disability who is bypassed for the job given to an employee with a disability?
• If a union files a grievance because of seniority concerns regarding an employer’s accommodation of an employee with a disability, does the union’s action amount to retaliation against the employee with a disability under the ADA?
• How will an employer’s duty to bargain exclusively with the union under the NLRA affect an employer’s obligation under the ADA to discuss reasonable accommodations directly with the employee with a disability?
• What happens if a “reasonable accommodation” under the ADA requires an assignment to a light-duty job, but the collective bargaining agreement under the NLRA would require the assignment of the job based on seniority?

The NLRB has identified the following potentially conflicting requirements between the ADA and the NLRA:

• The duty to bargain regarding the adoption of an accommodation;
• The process of identifying reasonable accommodations;
• Accommodations which conflict with existing collective bargaining agreements;
• The provision of confidential medical information to the union; and
• The duty of fair representation.

State laws

Some states have related laws, but most of them resemble the federal Americans with Disabilities Act (ADA). The state laws might, however, apply to more employers, and may define the related terms a bit differently.

Receiving a charge of discrimination from the EEOC

• It is highly recommended that employers consult their attorney when receiving a charge of discrimination.
• Compensatory and punitive damages may be available where discrimination is found.

Generally, the following happens when a charge is filed against employers:

Employers will be notified that a charge of discrimination has been filed and they will be provided with the name and contact information for the investigator assigned to the case. A charge does not constitute a finding that the company engaged in discrimination. The EEOC has a responsibility to investigate and determine whether there is a reasonable cause to believe discrimination occurred.

In many cases, employers may opt to resolve a charge early in the process through mediation or settlement. At the start of an investigation, the EEOC will advise if the charge is eligible for mediation, but employers may ask the investigator about the settlement option. Mediation and settlement are voluntary resolutions.

During the investigation, employers and the charging parties will be asked to provide information. The investigator will evaluate the information submitted to determine whether unlawful discrimination has taken place. Employers may be asked to do the following:

• Submit a statement of position. This is employers’ opportunity to tell their side of the story and they should take advantage of it.
• Respond to a Request for Information (RFI). The RFI may ask employers to submit copies of personnel policies, charging party’s personnel files, the personnel files of other individuals and other relevant information.
• Permit an on-site visit. While employers may view such a visit as being disruptive to their operations, such visits can greatly expedite the fact-finding process and may help achieve quicker resolutions. In some cases, an on-site visit may be an alternative to a RFI if requested documents are made available for viewing or photocopying.
• Provide contact information for or have employees available for witness interviews. Employers may be present during interviews with management personnel, but an investigator is allowed to conduct interviews of non-management level employees without employers’ presence or permission.

When employers receive a charge of discrimination from the EEOC, they can turn the matter over to their attorney, or they can try writing the company’s response — the position statement — themselves. They may want to have it at least reviewed by an attorney.

If the charge was not dismissed by the EEOC when it was received, that means there was some basis for proceeding with further investigation. There are many cases where it is unclear whether discrimination may have occurred, and an investigation is necessary.

Once the investigator has completed the investigation, the EEOC will make a determination on the merits of the charge.

• If the EEOC determines that there is no reasonable cause to believe that discrimination occurred, the charging party will be issued a letter called a “Dismissal and Notice of Rights” that tells the charging party of the right to file a lawsuit in federal court within 90 days from the date of receipt of the letter. Employers will also receive a copy of this document.
• If the EEOC determines that there is reasonable cause to believe discrimination has occurred, both parties will be issued a “Letter of Determination” stating that there is reason to believe that discrimination occurred and inviting the parties to join the agency in seeking to resolve the charge through an informal process known as conciliation.
• Where conciliation fails, the EEOC has the authority to enforce violations of its statutes by filing a lawsuit in federal court. If the EEOC decides not to litigate, the charging party will receive a “Notice of Right to Sue” and may file a lawsuit in federal court within 90 days.

The “relief” or remedies available for employment discrimination, whether caused by intentional acts or by practices that have a discriminatory effect, may include:

• Hiring,
• Reinstatement,
• Promotion,
• Back pay,
• Front pay,
• Reasonable accommodation, or
• Other actions that will make individuals “whole” (in the condition they would have been if not for the discrimination).

Remedies also may include payment of:

• Attorneys’ fees
• Expert witness fees
• Court costs

Compensatory and punitive damages also may be available where intentional discrimination is found, covering:

• Actual monetary losses
• Future monetary losses
• Mental anguish
• Inconvenience

Punitive damages also may be available if an employer acted with malice or reckless indifference. The total amount of punitive damages and compensatory damages for future monetary loss and emotional injury for each individual is limited based on the size of the employer, using the following schedule:

Courts

When a situation cannot be resolved otherwise, the courts may get involved. The courts help to interpret the law and regulations in regard to the situation(s) involved in specific cases.

In most cases, employers have greater chances of winning in court if they have taken the appropriate steps in regard to individuals covered by the law, have acted in good faith and made good faith efforts, and have documented the situation and action taken in regard to the case. Of course, open lines of communication between employees and supervisors, managers, HR personnel, and upper management never hurts in ADA-related situation.

Long COVID

Long COVID, also known as post-COVID syndrome or PASC (Post-Acute Sequelae COVID) can be a disability. An estimated 7.7 million to 23 million individuals or 10 to 30 percent of people suffer from long COVID, with a wide range of symptoms that include, but is not limited to extreme fatigue, heart and breathing problems, brain fog, or loss of sense of smell.

A variety of studies are underway to look at the effects of long COVID. Long COVID lasts more than three weeks. It might be post-acute COVID that lasts less than 6 or 7 weeks or chronic COVID that lasts more than that — in some situations, it lasts for months or years.

Sometimes the symptoms will go away but return later. Anyone who has been infected with the virus can experience post-COVID conditions.

Another related term is COVID psychosis. Some reports indicate that employees left their job for the sake of mental health, and an EEOC commissioner indicated that mental health-related ADA claims are expected to increase significantly, in part due to returning to the workplace after being away because of the pandemic.

Direct threat

• The ADA provisions to establish a direct threat are specific and stringent.

Employers may require that an individual not pose a direct threat as a qualification standard if this standard applies to all applicants for a particular job. In general terms, a direct threat is a significant risk of substantial harm to the health or safety of the individual or others, which cannot be eliminated or reduced by reasonable accommodation.

Employers must meet very specific and stringent requirements under the Americans with Disabilities Act (ADA) to establish that such a direct threat exists, and they must be prepared to show:

• There is significant risk of substantial harm;
• The specific risk is identified;
• It is a current risk, not speculative or remote;
• The assessment of risk was based on objective medical or other factual evidence regarding a particular individual; and
• They have considered whether the risk can be eliminated or reduced below the level of a direct threat by reasonable accommodation if a genuine significant risk of substantial harm exists.

Employers generally may not simply believe an individual poses a direct threat. They need to have supporting evidence and base their determination on reasonable medical judgment, which relies on the most current medical knowledge and best available objective evidence. The determination also needs to reflect an individualized assessment of the applicant’s or employee’s abilities.

Before a job offer

• Medical examinations and inquiries of applicants are prohibited at the pre-offer stage under the ADA.
• Tests for illegal drugs are not considered medical exams, but alcohol tests are.

Medical examinations and medical inquiries of applicants are prohibited under the Americans with Disabilities Act (ADA) at the pre-offer stage. A job offer may, however, be conditional based on the results of a medical examination if all employees entering similar jobs are also required to undergo an examination. If employers decide not to hire an individual because of a disability after the examination, they must demonstrate that the reason for the rejection is job related and consistent with business necessity.

Employers may make certain pre-employment, pre-offer inquiries regarding:

• Use of alcohol or illegal drugs,
• Whether an applicant drinks alcohol, or
• Whether an applicant is currently illegally using drugs.

Employers may not ask:

• Whether an applicant is a drug addict or alcoholic, or
• Whether an applicant has ever been in a drug or alcohol rehabilitation program.

Tests for illegal drugs are not considered medical examinations, and employers may require an applicant to take one before making a conditional job offer. Alcohol tests, however, are considered medical exams and are prohibited at the pre-offer stage.

Employers may ask applicants to describe or demonstrate how they will perform specific job functions, if this is required of everyone applying for a job in this job category, regardless of disability.

After a job offer

• The ADA requires that medical examinations be conducted only after an applicant has been made a job offer.
• A medical exam should not include genetic information per the GINA.

The Americans with Disabilities Act (ADA) recognizes that employers may need to conduct medical examinations to determine if an applicant can perform certain jobs effectively and safely. The ADA requires only that such examinations be conducted as a separate, second step of the selection process, after an individual has met all other job prerequisites and been offered a job.

Employers may make a job offer conditioned on the satisfactory outcome of a medical examination or inquiry, provided they require the same of all employees entering a particular job category, not just individuals with disabilities or those they believe may have a disability.

If employers screen out an individual because of a disability, they must show that:

• The reason for the rejection is job related and consistent with business necessity, and
• The individual cannot perform the essential functions of the position in question with or without a reasonable accommodation.

A medical exam should exclude genetic information per the Genetic Information Nondiscrimination Act (GINA). Because employers can take advantage of a safe harbor provision when inadvertently receiving genetic information, they should provide an employee and applicable health care providers a warning to not provide genetic information.

The ADA does not require employers to justify their requirement of a post-offer medical examination. A post-offer medical examination does not have to be given to employees entering all jobs, only those in the same job category.

A post-offer medical examination or inquiry, made before an individual starts work, need not:

• Focus on the ability to perform job functions, or
• Be job related and consistent with business necessity.

The results of a medical inquiry or examination may not, however, be used to disqualify people who are currently able to perform, with or without reasonable accommodations, the essential functions of a job because of fear or speculation that a disability may:

• Indicate a greater risk of future injury or absenteeism, or
• Increase future workers’ compensation or insurance costs.

Employers may use medical examination results to exclude an individual with a disability where there is specific medical documentation, reflecting current medical knowledge, that the individual would pose a significant, current risk of substantial harm to health or safety that cannot be reduced or eliminated by reasonable accommodation.

Confidentiality

All information obtained from post-offer medical examinations and inquiries must be collected and maintained on separate forms, in separate medical files, and treated as a confidential medical record.

After being hired

• The ADA has strict requirements for medical examinations and inquiries of employees.

The ADA requirements concerning medical examinations and inquiries of employees are more stringent than those affecting applicants being evaluated for employment after a conditional job offer. For a medical exam or inquiry to be made of an employee, it must be:

• Job related, and
• Consistent with business necessity.

The need for the exam may:

• Be triggered by some evidence of problems related to job performance or safety, or
• Be necessary to determine whether individuals in physically demanding jobs are still fit for duty.

Generally, this means employers have a reasonable belief, based on objective evidence, that an employee is:

• Unable to perform an essential function, or
• Posing a direct threat because of a medical condition.

The scope and manner of any inquiries or medical examinations must be limited to information necessary to determining whether these beliefs are accurate.

Direct threat

Employers may make medical inquiries or require medical exams of employees if they will pose a direct threat. The same conditions apply to a direct threat for employees as they do in qualification standards for applicants.