July 17, 2018

Americans With Disabilities Act - 42 U.S.C. § 12102, et seq.

Federal Regulations – 42 CFR Part 1630

History: The Americans With Disabilities Act was signed into law in 1990. The ADA is one of America’s most comprehensive pieces of civil rights legislation that prohibits discrimination and guarantees that people with disabilities have the same opportunities as everyone else to participate in the mainstream of American life – to enjoy employment opportunities, to purchase goods and services and to participate in State and local government programs and services. The ADA is an “equal opportunity law” for people with disabilities.

Employer: 15 or more employees.

ADA Protects: To be protected, one must have a disability, which is defined by the ADA as a physical or mental impairment that substantially limits one or more major life functions, a person who has a history or record of such an impairment or a person who is perceived by others as having such an impairment.

Physical or mental impairment: physical: Any physiological disorder or condition, cosmetic disfigurement, or anatomical loss affecting one or more body systems, such as neurological, musculoskeletal, special sense organs, respiratory (including speech organs), cardiovascular, reproductive, digestive, genitourinary, immune, circulatory, hemic, lymphatic, skin, and endocrine; mental/psychological: or any mental or psychological disorder, such as an intellectual disability (formerly termed “mental retardation”), organic brain syndrome, emotional or mental illness, and specific learning disabilities.

Major Life Activities: include, but are not limited to: caring for oneself, performing manual tasks, seeing, hearing, eating, sleeping, walking, standing, lifting, bending, speaking, breathing, learning, reading, concentrating, thinking, communicating, and working. Also includes major bodily function.

Major Bodily Functions: a major life activity also includes the operation of a major bodily function, including but not limited to, functions of the immune system, normal cell growth, digestive, bowel, bladder, neurological, brain, respiratory, circulatory, endocrine, and reproductive functions.

Substantially Limits: shall be construed broadly in favor of expansive coverage, to the maximum extent permitted by the terms of the ADA. “Substantially limits” is not meant to be a demanding standard. 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. An impairment need not prevent, or significantly or severely restrict, the individual from performing a major life activity in order to be considered substantially limiting. Nonetheless, not every impairment will constitute a disability within the meaning of this section.

Focus Should Not Be On Whether Individual Is “Disabled:” Regulations specifically state that the primary object of attention in cases brought under the ADA should be whether covered entities have complied with their obligations and whether discrimination has occurred, not whether an individual's impairment substantially limits a major life activity. Accordingly, the threshold issue of whether an impairment “substantially limits” a major life activity should not demand extensive analysis.

Regarded as having such an impairment: An individual meets the requirement of "being regarded as having such an impairment" if the individual establishes that he or she has been subjected to an action prohibited under this chapter because of an actual or perceived physical or mental impairment whether or not the impairment limits or is perceived to limit a major life activity. This provision shall not apply to impairments that are transitory and minor. A transitory impairment is an impairment with an actual or expected duration of 6 months or less.

Remission: An impairment that is episodic or in remission is a disability if it would substantially limit a major life activity when active.

Ameliorative Effects of Mitigating Measures Not Considered: The determination of whether an impairment substantially limits a major life activity shall be made without regard to ameliorative effects of mitigating measures such as: medication, medical supplies, equipment, or appliances, low-vision devices (which do not include ordinary eyeglasses or contact lenses), prosthetics including limbs and devices, hearing aids and cochlear implants or other implantable hearing devices, mobility devices, or oxygen therapy equipment and supplies; use of assistive technology; reasonable accommodations or auxiliary aids or services; or learned behavioral or adaptive neurological modifications.

Ameliorative Effects Considered: The ameliorative effects of the mitigating measures of ordinary eyeglasses or contact lenses shall be considered in determining whether an impairment substantially limits a major life activity. "ordinary eyeglasses or contact lenses" means lenses that are intended to fully correct visual acuity or eliminate refractive error; and the term "low-vision devices" means devices that magnify, enhance, or otherwise augment a visual image.

Qualified individual: The ADA makes it illegal to discriminate against “qualified individuals with disabilities.” The term "qualified individual " means an individual who, with or without reasonable accommodation, can perform the essential functions of the employment position that such individual holds or desires.

Essential Functions: The term essential functions means the fundamental job duties of the employment position the individual with a disability holds or desires. The term “essential functions” does not include the marginal functions of the position. For the purposes of this subchapter, consideration shall be given to the employer's judgment as to what functions of a job are essential, and if an employer has prepared a written description before advertising or interviewing applicants for the job, this description shall be considered evidence of the essential functions of the job.

Factors In Determining Essential Job Functions: A job function may be considered essential for any of several reasons, including but not limited to the following:

• The function may be essential because the reason the position exists is to perform that function;
• The function may be essential because of the limited number of employees available among whom the performance of that job function can be distributed; and/or
• The function may be highly specialized so that the incumbent in the position is hired for his or her expertise or ability to perform the particular function.

Evidence of Essential Job Functions: Evidence of whether a particular function is essential includes, but is not limited to:

• The employer's judgment as to which functions are essential;
• Written job descriptions prepared before advertising or interviewing applicants for the job;
• The amount of time spent on the job performing the function;
• The consequences of not requiring the incumbent to perform the function;
• The terms of a collective bargaining agreement;
• The work experience of past incumbents in the job; and/or
• The current work experience of incumbents in similar jobs.

Reasonable accommodation: "reasonable accommodation" may include

• making existing facilities used by employees readily accessible to and usable by individuals with disabilities
• job restructuring
• part-time or modified work schedules
• reassignment to a vacant position
• acquisition or modification of equipment or devices
• appropriate adjustment or modifications of examinations, training materials or policies
• the provision of qualified readers or interpreters, and other similar accommodations for individuals with disabilities
• leaves of absence (beyond that guaranteed by state and/or federal Family and Medical Leave.

Reasonable Accommodation Required: A covered entity is required, absent undue hardship, to provide a reasonable accommodation to an otherwise qualified individual who meets the definition of disability under the “actual disability” prong, or “record of” prong, but is not required to provide a reasonable accommodation to an individual who meets the definition of disability solely under the “regarded as” prong.

Interactive Process: To determine the appropriate reasonable accommodation it may be necessary for the covered entity to initiate an informal, interactive process with the individual with a disability in need of the accommodation. This process should identify the precise limitations resulting from the disability and potential reasonable accommodations that could overcome those limitations.

Undue hardship: The term "undue hardship" means an action requiring significant difficulty or expense, when considered in light of the factors: the nature and cost of the accommodation needed under this chapter; the overall financial resources of the facility or facilities involved in the provision of the reasonable accommodation; the number of persons employed at such facility; the effect on expenses and resources, or the impact otherwise of such accommodation upon the operation of the facility; the overall financial resources of the covered entity; the overall size of the business of a covered entity with respect to the number of its employees; the number, type, and location of its facilities; and the type of operation or operations of the covered entity, including the composition, structure, and functions of the workforce of such entity; the geographic separateness, administrative, or fiscal relationship of the facility or facilities in question to the covered entity.

Discrimination Prohibited: No covered entity shall discriminate against a qualified individual on the basis of disability in regard to job application procedures, the hiring, advancement, or discharge of employees, employee compensation, job training, and other terms, conditions, and privileges of employment.

Discriminate against a qualified individual on the basis of disability: It is unlawful for a covered entity to discriminate on the basis of disability against a qualified individual in regard hiring, assignment, compensation, fringe benefits, discipline, termination and any other term or condition of employment.

Medical examinations and inquiries: The prohibition against discrimination as referred to in subsection includes medical examinations and inquiries.

Pre-employment Inquiries: a covered entity shall not conduct a medical examination or make inquiries of a job applicant as to whether such applicant is an individual with a disability or as to the nature or severity of such disability, except as stated below.

Acceptable Pre-employment inquiry: A covered entity may make pre-employment inquiries into the ability of an applicant to perform job-related functions.

Employment entrance examination: A covered entity may require a medical examination after an offer of employment has been made to a job applicant and prior to the commencement of theemployment duties of such applicant, and may condition an offer of employment on the resultsof such examination, if: all entering employees are subjected to such an examination regardlessof disability; information obtained regarding the medical condition or history of the applicant iscollected and maintained on separate forms and in separate medical files and is treated as aconfidential medical record, except that supervisors and managers may be informed regardingnecessary restrictions on the work or duties of the employee and necessary accommodations;first aid and safety personnel may be informed, when appropriate, if the disability might requireemergency treatment; and government officials investigating compliance with this chapter shallbe provided relevant information on request; and the results of such examination are used only inaccordance with this provision.

Prohibited Examination and inquiry Re Employees: A covered entity shall not require a medical examination and shall not make inquiries of an employee as to whether such employee is an individual with a disability or as to the nature or severity of the disability, unless such examination or inquiry is shown to be job-related and consistent with business necessity.

Acceptable examinations and inquiries: A covered entity may conduct voluntary medical examinations, including voluntary medical histories, which are part of an employee health program available to employees at that work site. A covered entity may make inquiries into the ability of an employee to perform job-related functions.

Documents Must Be Kept Confidential: Medical documents must be kept in separate medical files.

Qualification standards: The term "qualification standards" means the personal and professional attributes including the skill, experience, education, physical, medical, safety and other requirements established by a covered entity as requirements which an individual must meet in order to be eligible for the position held or desired. It may include a requirement that an individual shall not pose a direct threat to the health or safety of the employee or other individuals in the workplace.

Direct Threat: means a significant risk of substantial harm to the health or safety of the individual or others that cannot be eliminated or reduced by reasonable accommodation. The determination that an individual poses a “direct threat” shall be based on an individualized assessment of the individual's present ability to safely perform the essential functions of the job. This assessment shall be based on a reasonable medical judgment that relies on the most current medical knowledge and/or on the best available objective evidence. In determining whether an individual would pose a direct threat, the factors to be considered include:

(1) The duration of the risk;
(2) The nature and severity of the potential harm;
(3) The likelihood that the potential harm will occur; and
(4) The imminence of the potential harm.

Illegal use of drugs and alcohol: For purposes of this subchapter, qualified individual with a disability shall not include any employee or applicant who is currently engaging in the illegal use of drugs, when the covered entity acts on the basis of such use. However, employers may not exclude as a qualified individual with a disability an individual who has successfully completed a supervised drug rehabilitation program and is no longer engaging in the illegal use of drugs, or has otherwise been rehabilitated successfully and is no longer engaging in such use; is participating in a supervised rehabilitation program and is no longer engaging in such use; or is erroneously regarded as engaging in such use, but is not engaging in such use.

Drug Testing: An employer may adopt or administer reasonable policies or procedures, including but not limited to drug testing, designed to ensure that an individual is no longer engaging in the illegal use of drugs. Not considered a medical examination.

Permissible Policies: Employers may prohibit the illegal use of drugs and the use of alcohol at the workplace by all employees. Employers may require that employees shall not be under the influence of alcohol or be engaging in the illegal use of drugs at the workplace. Employers may require that employees behave in conformance with the requirements established under the Drug- Free Workplace Act of 1988 (41 U.S.C. 701 et seq.).

Alcohol/Drug Use – No Excuse: Employers may hold an employee who engages in the illegal use of drugs or who is an alcoholic to the same qualification standards for employment or job performance and behavior that such entity holds other employees, even if any unsatisfactory performance or behavior is related to the drug use or alcoholism of such employee. Certain Federal regulations regulate drug and alcohol use/testing.

Retaliation: It is unlawful to discriminate against any individual because that individual has opposed any act or practice made unlawful by this part or because that individual made a charge, testified, assisted, or participated in any manner in an investigation, proceeding, or hearing to enforce any provision contained in the ADA.

Coercion, interference or intimidation: It is unlawful to coerce, intimidate, threaten, harass or interfere with any individual in the exercise or enjoyment of, or because that individual aided or encouraged any other individual in the exercise of, any right granted or protected by the ADA.