Q. What employers are covered by title I of the ADA, and
when is the coverage effective?
A. The title I employment provisions
apply to private employers, State and local governments, employment agencies,
and labor unions. Employers with 25 or more employees are covered as of July
26, 1992. Employers with 15 or more employees are covered as of July 26,
Q. What practices and activities are covered by the
employment nondiscrimination requirements?
A. The ADA prohibits
discrimination in all employment practices, including job application
procedures, hiring, firing, advancement, compensation, training, and other
terms, conditions, and privileges of employment. It applies to recruitment,
advertising, tenure, layoff, leave, fringe benefits, and all other
Q. Who is protected from employment discrimination?
A. Employment discrimination is prohibited against "qualified individuals with
disabilities." This includes applicants for employment and employees. An
individual is considered to have a "disability" if he/she has a physical or
mental impairment that substantially limits one or more major life activities,
has a record of such an impairment, or is regarded as having such an
impairment. Persons discriminated against because they have a known association
or relationship with an individual with a disability also are protected.
The first part of the definition makes clear that the ADA applies to
persons who have impairments and that these must substantially limit major life
activities such as seeing, hearing, speaking, walking, breathing, performing
manual tasks, learning, caring for oneself, and working. An individual with
epilepsy, paralysis, HIV infection, AIDS, a substantial hearing or visual
impairment, mental retardation, or a specific learning disability is covered,
but an individual with a minor, nonchronic condition of short duration, such as
a sprain, broken limb, or the flu, generally would not be covered.
second part of the definition protecting individuals with a record of a
disability would cover, for example, a person who has recovered from cancer or
The third part of the definition protects individuals who
are regarded as having a substantially limiting impairment, even though they
may not have such an impairment. For example, this provision would protect a
qualified individual with a severe facial disfigurement from being denied
employment because an employer feared the "negative reactions" of customers or
Q. Who is a "qualified individual with a disability"?
A. A qualified individual with a disability is a person who meets
legitimate skill, experience, education, or other requirements of an employment
position that he/she holds or seeks, and who can perform the "essential
functions" of the position with or without reasonable accommodation. Requiring
the ability to perform "essential" functions assures that an individual with a
disability will not be considered unqualified simply because of inability to
perform marginal or incidental job functions. If the individual is qualified to
perform essential job functions except for limitations caused by a disability,
the employer must consider whether the individual could perform these functions
with a reasonable accommodation. If a written job description has been prepared
in advance of advertising or interviewing applicants for a job, this will be
considered as evidence, although not conclusive evidence, of the essential
functions of the job.
Q. What is "reasonable accommodation"?
accommodation is any modification or adjustment to a job or the work
environment that will enable a qualified applicant or employee with a
disability to participate in the application process or to perform essential
job functions. Reasonable accommodation also includes adjustments to assure
that a qualified individual with a disability has rights and privileges in
employment equal to those of employees without disabilities.
Q. What are some of the accommodations applicants and
employees may need?
A. Examples of reasonable accommodation include
making existing facilities used by employees readily accessible to and usable
by an individual with s disability; restructuring a job; modifying work
schedules; acquiring or modifying equipment; providing qualified readers or
interpreters; or appropriately modifying examinations, training, or other
programs. Reasonable accommodation also may include reassigning a current
employee to a vacant position for which the individual is qualified, if the
person is unable to do the original job because of a disability even with an
accommodation. However, there is no obligation to find a position for an
applicant who is not qualified for the position sought. Employers are not
required to lower quality or quantity standards as an accommodation; nor are
they obligated to provide personal use items such as glasses or hearing aids.
The decision as to the appropriate accommodation must be based on the
particular facts of each case. In selecting the particular type of reasonable
accommodation to provide, the principal test is that of effectiveness, i.e.,
whether the accommodation will provide an opportunity for a person with a
disability to achieve the same level of performance and to enjoy benefits equal
to those of an average, similarly situated person without a disability.
However, the accommodation does not have to ensure equal results or provide
exactly the same benefits.
Q. Can an employer be required to modify, adjust, or make
other reasonable accommodations in the way a test is given to a qualified
applicant or employee with a disability? A. Yes. Accommodations may be
needed to assure that tests or examinations measure the actual ability of an
individual to perform job functions rather than reflect limitations caused by
the disability. Tests should 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 it is a job-related skill that the test is designed to measure.
Q. When is an employer required to make a reasonable
accommodation? A. An employer is only required to accommodate a "known"
disability of a qualified applicant or employee. The requirement generally will
be triggered by a request from an individual with a disability, who frequently
will be able to suggest an appropriate accommodation. Accommodations must be
made on an individual basis, because the nature and extent of a disabling
condition and the requirements of a job will vary in each case. If the
individual does not request an accommodation, the employer is not obligated to
provide one except where an individuals's known disability impairs his/her
ability to know of, or effectively communicate a need for, an accommodation
that is obvious to the employer. If a person with a disability requests, but
cannot suggest, an appropriate accommodation, the employer and the individual
should work together to identify one. There are also many public and private
resources that can provide assistance without cost.
Q. What are the limitations on the obligation to make a
reasonable accommodation? A. The individual with a disability requiring the
accommodation must be otherwise qualified, and the disability must be known to
the employer. In addition, an employer is not required to make an accommodation
if it would impose an "undue hardship" on the operation of the employer's
business. "Undue hardship" is defined as an "action requiring significant
difficulty or expense" when considered in light of a number of factors. These
factors include the nature and cost of the accommodation in relation to the
size, resources, nature, and structure of the employer's operation. Undue
hardship is determined on a case-by-case basis. Where the facility making the
accommodation is part of a larger entity, the structure and overall resources
of the larger organization would be considered, as well as the financial and
administrative relationship of the facility to the larger organization. In
general, a larger employer with greater resources would be expected to make
accommodations requiring greater effort or expense than would be required of a
smaller employer with fewer resources.
If a particular accommodation would
be an undue hardship, the employer must try to identify another accommodation
that will not pose such a hardship. Also, if the cost of an accommodation would
impose an undue hardship on the employer, the individual with a disability
should be given the option of paying that portion of the cost which would
constitute an undue hardship or providing the accommodation.
Q. Can an employer be required to reallocate an essential
function of a job to another employee as a reasonable accommodation? A. No.
An employer is not required to reallocate essential functions of a job as a
Q. Can an employer maintain existing production/performance
standards for an employee with a disability?
A. Yes. An employer can
hold employees with disabilities to the same standards of
production/performance as other similarly situated employees without
disabilities for performing essential job functions, with or without reasonable
accommodation. An employer also can hold employees with disabilities to the
same standards of production/performance as other employees regarding marginal
functions unless the disability affects the person's ability to perform those
marginal functions. If the ability to perform marginal functions is affected by
the disability, the employer must provide some type of reasonable accommodation
such as job restructuring but may not exclude an individual with a disability
who is satisfactorily performing a job's essential functions.
Q. Can an employer establish specific attendance and leave
A. Yes. An employer can establish attendance and leave
policies that are uniformly applied to all employees, regardless of disability,
but may not refuse leave needed by an employee with a disability if other
employees get such leave. An employer also may be required to make adjustments
in leave policy as a reasonable accommodation. The employer is not obligated to
provide additional paid leave, but accommodations may include leave flexibility
and unpaid leave. A uniformly applied leave policy does not violate the ADA
because it has a more severe effect on an individual because of his/her
disability. However, if an individual with a disability requests a modification
of such a policy as a reasonable accommodation, an employer may be required to
provide it, unless it would impose an undue hardship.
Q. Can an employer consider health and safety when deciding
whether to hire an applicant or retain an employee with a disability?
A. Yes. The ADA permits employers to establish qualification standards
that will exclude individuals who pose a direct threat - i.e., a significant
risk of substantial harm - to the health or safety of the individual or of
others, if that risk cannot be eliminated or reduced below the level of a
"direct threat" by reasonable accommodation. However, an employer may not
simply assume that a threat exists; the employer must establish through
objective, medically supportable methods that there is significant risk that
substantial harm could occur in the workplace. By requiring employers to make
individualized judgments based on reliable medical or other objective evidence
rather than on generalizations, ignorance, fear, patronizing attitudes, or
stereotypes, the ADA recognizes the need to balance the interests of people
with disabilities against the legitimate interests of employers in maintaining
a safe workplace.
Q. Is testing for the illegal use of drugs permissible
under the ADA?
A. Yes. A test for the illegal use of drugs is not
considered a medical examination under the ADA; therefore, employers may
conduct such testing of applicants or employees and make employment decisions
based on the results. The ADA does not encourage, prohibit, or authorize drug
tests. If the results of a drug test reveal the presence of a lawfully
prescribed drug or other medical information, such information must be treated
as a confidential medical record.
Q. Are alcoholics covered by the ADA?
A. Yes. While
a current illegal user of drugs is not protected by the ADA if an employer acts
on the basis of such use, a person who currently uses alcohol is not
automatically denied protection. An alcoholic is a person with a disability and
is protected by the ADA if he/she is qualified to perform the essential
functions of the job. An employer may be required to provide an accommodation
to an alcoholic. However, an employer can discipline, discharge or deny
employment to an alcoholic whose use of alcohol adversely affects job
performance or conduct. An employer also may prohibit the use of alcohol in the
workplace and can require that employees not be under the influence of alcohol.