Title I of ADA prohibits employers with 15 or more employees from discriminating against individuals with disabilities with respect to hiring, promotion, discharge, training and other terms, conditions and privileges of employment.
With respect to an individual, the ADA defines a disability as (A) a physical or mental impairment that substantially limits one or more major life activities of such individual; (B) a record of such an impairment; or (C) being regarded as having such an impairment.
The Americans with Disabilities Amendments Act reinforced the ADA and expanded the definition of major life activity which now says:
“In general…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. 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.”
The Americans with Disabilities Act restricts the use of medical inquiries by an employer. Any medical inquiries (including medical exams) an employer would like to make of a prospective employee must be done after a job offer has been extended but before the individual actually begins work. In limited circumstances, an employer is permitted to ask current employees to submit to a medical exam or inquire about an individual’s medical condition such as when the employer needs medical documentation to support an employee’s request for an accommodation or if the employer believes that an employee is not able to perform a job successfully or safely because of a medical condition.
Any medical information a company collects about an employee or applicant must be maintained in a separate, locked, confidential medical file.
Not only are employers prohibited from discriminating against individuals with disabilities, but they must also actively engage with the applicant or employee to determine whether or not a reasonable accommodation would enable that person to participate in the hiring process, to perform the essential job functions, to return to work from a leave of absence, to effectively communicate with coworkers, etc. The Job Accommodation Network (JAN) is a great resource for employers. The JAN website provides accommodation information based on both disability and by occupation or industry. This website can be an invaluable tool in helping a company flesh out reasonable accommodations for employees.
It is important that employers actively engage with the individual who needs an accommodation to determine if there is a reasonable accommodation that will enable the individual to perform the essential functions of his or her job. This includes asking them for their suggestions regarding accommodations, encouraging them to get suggestions from their health care provider regarding accommodations and discussing with the individual any options the company has discovered that would enable the person to perform his essential job duties.
Employers should know the variables involved with ADA and COVID-19.
- CLICK HERE to view the ADA’s article on Protecting Civil Rights While Responding to the Coronavirus Disease 2019 (COVID-19)
- CLICK HERE to view the CDC’s guidance for persons with disabilities and COVID-19.
- CLICK HERE to view EEOC information on What You Should Know About COVID-19 and the ADA, the Rehabilitation Act, and Other EEO Laws.
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