Job Accommodation F.A.Q.

U.S. Department of Labor Employee Benefits Security Administration
FAQs About Portability Of Health Coverage And HIPAA

EEOC’S NOTICE OF PROPOSED RULEMAKING (NPRM) TO IMPLEMENT THE ADA AMENDMENTS ACT OF 2008 (ADAAA) SUMMARY OF KEY PROVISIONS

(En Español)

Basic Definition of “Disability”

The basic three-part ADA definition is retained: a physical or mental impairment that substantially limits one or more major life activities; a record of such an impairment; or being regarded as having such an impairment. However, the meaning of these terms has changed.

Rules Used to Determine Whether Someone Has a “Disability”

An impairment need not prevent, or significantly or severely restrict, performance of a major life activity to be “substantially limiting.”
Disability “shall be construed in favor of broad coverage” and “should not require extensive analysis.”
An individual’s ability to perform a major life activity is compared to “most people in the general population,” often using a common-sense analysis without scientific or medical evidence.
An impairment need not substantially limit more than one major life activity.

Major Life Activities (MLAs)

MLAs include “major bodily functions,” such as functions of the immune system, normal cell growth, digestive, bowel, bladder, neurological, brain, circulatory, respiratory, endocrine, hemic, lymphatic, musculoskeletal, special sense organs and skin, genitourinary, and cardiovascular systems, and reproductive functions.
MLAs also include: caring for oneself, performing manual tasks, seeing, hearing, eating, sleeping, walking, standing, lifting, bending, speaking, breathing, learning, reading, concentrating, thinking, communicating, sitting, reaching, interacting with others, and working.

Mitigating Measures

Positive effects of mitigating measures (except for ordinary eyeglasses and contact lenses) are ignored in determining whether an impairment is substantially limiting.
Examples of mitigating measures include medication, medical equipment and devices, prosthetics, hearing aids, cochlear implants and other implantable hearing devices, low vision devices, mobility devices, oxygen therapy, use of assistive technology, reasonable accommodations and auxiliary aids or services, behavioral or neurological modifications, and surgical interventions that do not permanently eliminate an impairment.
Ordinary eyeglasses and contact lenses are lenses “intended to fully correct visual acuity or eliminate refractive error.”

Impairments that Are Episodic or in Remission

An impairment that is “episodic” or “in remission” is a disability if it would substantially limit a major life activity when active. Examples of impairments that are episodic or in remission include epilepsy, hypertension, multiple sclerosis, asthma, diabetes, major depression, bipolar disorder, schizophrenia, and cancer.

Examples Illustrating Definition of Disability

Impairments for which an individualized assessment “can be conducted quickly and easily, and that will consistently result in a determination that the person is substantially limited in a major life activity”: deafness, blindness, intellectual disability (formerly known as mental retardation), partially or completely missing limbs, mobility impairments requiring use of a wheelchair, autism, cancer, cerebral palsy, diabetes, epilepsy, HIV/AIDS, multiple sclerosis, muscular dystrophy, major depression, bipolar disorder, post-traumatic stress disorder, obsessive-compulsive disorder, and schizophrenia.
Impairments that may be substantially limiting for some individuals but not for others, and therefore may require somewhat more, though still not extensive, analysis: asthma, high blood pressure, back and leg impairments, learning disabilities, panic or anxiety disorders, some forms of depression, carpal tunnel syndrome, and hyperthyroidism.
Temporary, non-chronic impairments of short duration with little or no residual effects that usually will not substantially limit a major life activity: common cold, seasonal or common influenza, a sprained joint, minor and non-chronic gastrointestinal disorders, a broken bone expected to heal completely, appendicitis, and seasonal allergies.
However, an impairment may still be substantially limiting even if it lasts or is expected to last fewer than 6 months, such as a 20-pound lifting restriction lasting several months.

Substantially Limited in Working

An individual with a disability will usually be substantially limited in another major life activity, therefore generally making it unnecessary to consider whether the individual is substantially limited in working.
Replaces “class” or “broad range” of jobs with the concept of a “type of work.”
- A type of work may be identified by the nature of the work (e.g., commercial truck driving, assembly line jobs, food service jobs, clerical jobs, or law enforcement jobs).
- A type of work may also be defined by reference to job-related requirements (e.g., jobs requiring repetitive bending, reaching or manual tasks; jobs requiring frequent or heavy lifting; and jobs requiring prolonged sitting or standing).

“Regarded As ”

Employer regards an individual as having a disability if it takes a prohibited action based on an actual or perceived impairment that is not transitory (lasting or expected to last for six months or less) and minor. For example, taking an adverse employment action based on a sprained wrist and broken leg expected to heal normally does not amount to regarding an individual as having a disability, because these impairments are transitory and minor. Taking an adverse action based on carpal tunnel syndrome or Hepatitis C, or on a 2-day virus that an employer perceived to be heart disease, would amount to regarding an individual as having a disability.
Actions taken on the basis of an impairment’s symptoms (e.g., a facial tic related to Tourette’s Syndrome) or an individual’s use of mitigating measures (anti-seizure medication for epilepsy) are actions taken on the basis of an impairment.
Reasonable accommodation is not available to someone only covered under the “regarded as” prong of the definition of “disability.”

Uncorrected Vision Standards

Employer must show challenged uncorrected vision qualification standards are job-related and consistent with business necessity, regardless of whether the person challenging the standard has a disability.

Q. Am I obligated to provide a reasonable accommodation for an individual if I am unaware of her physical or mental impairment?

A. No. An employer's obligation to provide reasonable accommodation applies only to known physical or mental limitations. However, this does not mean that an applicant or employee must always inform you of a disability. If a disability is obvious, e.g., the applicant uses a wheelchair, the employer “knows” of the disability even if the applicant never mentions it.

Q. How do I determine whether a reasonable accommodation is appropriate and the type of accommodation that should be made available?

A. The requirement generally will be triggered by a request from an individual with a disability, who frequently can suggest an appropriate accommodation. Accommodations must be made on a case-by-case basis, because the nature and extent of a disabling condition and the requirements of the job will vary. The principal test in selecting a particular type of accommodation is that of effectiveness, i.e., whether the accommodation will enable the person with a disability to perform the essential functions of the job. It need not be the best accommodation or the accommodation the individual with a disability would prefer, although primary consideration should be given to the preference of the individual involved. However, as the employer, you have the final discretion to choose between effective accommodations, and you may select one that is least expensive or easier to provide.

Q. When must I consider reassigning an employee with a disability to another job as a reasonable accommodation?

A. When an employee with a disability is unable to perform her present job even with the provision of a reasonable accommodation, you must consider reassigning the employee to an existing position that she can perform with or without a reasonable accommodation. The requirement to consider reassignment applies only to employees and not to applicants. You are not required to create a position or to bump another employee in order to create a vacancy. Nor are you required to promote an employee with a disability to a higher level position.

Q. What if an applicant or employee refuses to accept an accommodation that I offer?

A. The ADA provides that an employer cannot require a qualified individual with a disability to accept an accommodation that is neither requested nor needed by the individual. However, if a necessary reasonable accommodation is refused, the individual may be considered not qualified.

Q. If our business has a health spa in the building, must it be accessible to employees with disabilities?

A. Yes. Under the ADA, workers with disabilities must have equal access to all benefits and privileges of employment that are available to similarly situated employees without disabilities. The duty to provide reasonable accommodation applies to all non-work facilities provided or maintained by you for your employees. This includes cafeterias, lounges, auditoriums, company-provided transportation and counseling services. If making an existing facility accessible would be an undue hardship, you must provide a comparable facility that will enable a person with a disability to enjoy benefits and privileges of employment similar to those enjoyed by other employees, unless this would be an undue hardship.

Q. If I contract for a consulting firm to develop a training course for my employees, and the firm arranges for the course to be held at a hotel that is inaccessible to one of my employees, am I liable under the ADA?

A. Yes. An employer may not do through a contractual or other relationship what it is prohibited from doing directly. You would be required to provide a location that is readily accessible to, and usable by your employee with a disability unless to do so would create an undue hardship.

Q. What are my responsibilities as an employer for making my facilities accessible?

A. As an employer, you are responsible under Title I of the ADA for making facilities accessible to qualified applicants and employees with disabilities as a reasonable accommodation, unless this would cause undue hardship. Accessibility must be provided to enable a qualified applicant to participate in the application process, to enable a qualified individual to perform essential job functions and to enable an employee with a disability to enjoy benefits and privileges available to other employees. However, if your business is a place of public accommodation (such as a restaurant, retail store or bank) you have different obligations to provide accessibility to the general public, under Title III of the ADA. Title III also will require places of public accommodation and commercial facilities (such as office buildings, factories and warehouses) to provide accessibility in new construction or when making alterations to existing structures. Further information on these requirements may be obtained from the U.S. Department of Justice, which enforces Title III. (See page 22).

Q. Under the ADA, can an employer refuse to hire an individual or fire a current employee who uses drugs illegally?

A. Yes. Individuals who currently use drugs illegally are specifically excluded from the ADA's protections. However, the ADA does not exclude:

persons who have successfully completed or are currently in a rehabilitation program and are no longer illegally using drugs, and
persons erroneously regarded as engaging in the illegal use of drugs.

Q. Does the ADA cover people with AIDS?

A. Yes. The legislative history indicates that Congress intended the ADA to protect persons with AIDS and HIV disease from discrimination.

Q. Can I consider health and safety in deciding whether to hire an applicant or retain an employee with a disability?

A. The ADA permits an employer to require that an individual not pose a direct threat to the health and safety of the individual or others in the work-place. A direct threat means a significant risk of substantial harm. You cannot refuse to hire or fire an individual because of a slightly increased risk of harm to himself or others. Nor can you do so based on a speculative or remote risk. The determination that an individual poses a direct threat must be based on objective, factual evidence regarding the individual's present ability to perform essential job functions. If an applicant or employee with a disability poses a direct threat to the health or safety of himself or others, you must consider whether the risk can be eliminated or reduced to an acceptable level with a reasonable accommodation.

Q. Am I required to provide additional insurance for employees with disabilities?

A. No. The ADA only requires that you provide an employee with a disability equal access to whatever health insurance coverage you provide to other employees. For example, if your health insurance coverage for certain treatments is limited to a specified number per year, and an employee, because of a disability, needs more than the specified number, the ADA does not require that you provide additional coverage to meet that employee's health insurance needs. The ADA also does not require changes in insurance plans that exclude or limit coverage for pre-existing conditions.

Q. Does the ADA require that I post a notice explaining its requirements?

A. The ADA requires that you post a notice in an accessible format to applicants, employees and members of labor organizations, describing the provisions of the Act. EEOC will provide employers with a poster summarizing these and other Federal legal requirements for nondiscrimination. EEOC will also provide guidance on making this information available in accessible formats for people with disabilities.

Source: www.ada.gov