| |
The Americans with Disabilities Act (ADA) prohibits discrimination against a “qualified person with a disability.” A person is qualified if she can perform the essential functions of the job with reasonable accommodations.
A person is disabled under the law if he has a physical or mental impairment which substantially limits one or more major life activities such as walking, seeing, hearing, speaking, working, breathing, learning, taking care of oneself of manual tasks. There are other ways to fall within the definition of disabled. One is to have a record of impairment, like a recovered victim of cancer or mental illness. Another way is to be regarded as having an impairment, even if one is not disabled. Examples of this category are someone with a hearing aid, severe burns, a facial scar, disfigurement such as a hunchback, head ticks, or someone erroneously regarded as an alcoholic or drug user. Those currently engaged in illegal drug or alcohol use are not covered, but those in rehabilitation clinics or recovered are included in the protection of the law. A relationship or association with a disabled person could protect you from discrimination. A spouse would be covered if an employer thought he might take too much leave to care for a disabled person. A volunteer in an AIDS hospice would be covered, as would someone with HIV or AIDS.
Excluded from coverage are those with contagious diseases, if they are a direct threat to the health and safety of others; illiteracy; personal characteristics such as eye or hair color or left-handedness; pregnancy (though discrimination because of pregnancy is a form of sex discrimination under the Civil Rights Act of 1964); personality traits such as poor judgment or quick temper; poverty; lack of education; a prison record; or age alone (age related conditions such as osteoporosis, arthritis and hearing losses can be disabilities). The statute excludes certain voyeurism, transsexuality, exhibitionism, compulsive gambling, kleptomania, pyromania, temporary non-chronic impairments of short duration (broken limbs, sprained joints, concussion, appendicitis and the flu), and most forms of obesity.
After determining whether the person is disabled, the next important question is whether the person is qualified. To be qualified the person must be able to perform the essential functions of the job with or without reasonable accommodations. Essential functions are fundamental to the positions. Some factors to consider when deciding whether the function is essential or marginal are the amount of time spent on the function, the consequences of not requiring it and the work experience of past or current jobholders. An employer must make reasonable accommodations after a request. Examples are making existing facilities readily available and usable, job devices, adjustment or modification of examinations, training materials or policies, using readers or interpreters, leave for treatment or additional unpaid leave, reserved parking spaces, or, as a last presort reassignment to a vacant position. The last solution may conflict with the seniority provisions of a union contract and therefore may not be reasonable. Unions want to be involved in any negotiations about reasonable accommodations affecting a bargaining unit. If the union is not consulted and changes are made, unfair labor practices under the National Labor Relations Act may have occurred.
If the accommodation would cause the employer an undue hardship, the employer is not required to make the accommodation. If the cost is high and the employer is small, the accommodation would not have to be made. A family owned store on a second floor would not be required to put in an elevator for a potential employee in a wheelchair because of the cost, but a large corporation must install elevators.
Applications cannot have questions about current health or medical histories. No inquires can be made about past workers compensation claims. An employer cannot ask a prospective employee about the nature or severity of a disability. If the disability is obvious, such a person in a wheelchair, the employer may ask if the person can do the job. An employer may not ask an applicant about how they became disabled or about the chances of recovery. There can be no medical exam before an offer of a job. There can be a medical exam after an offer but prior to the start of a job, if it is given to all employees in the hiring process. The medical exam must be job-related and consistent with business necessity, in which case, the offer can be conditioned on passing the exam. Information on medical exams must be in a separate, confidential file. Drug testing is allowed, but results must also be in a separate, confidential file.
Employees with disabilities must have equal access to health insurance held by other employees. Insurance companies can limit coverage and can have “pre-existing condition” clauses.
The EEOC enforces the ADA under similar procedures as the Civil Rights Act of 1964. [top] |
|
