The Americans with Disabilities Act of 1990 (ADA) and Amendments to the ADA Effective January 1, 2009 or ADAAA
Our disability discrimination attorneys help disabled employees throughout the state of Maryland, Washington DC and Northern Virginia who are subject to discrimination due to their disability, or seeking an accommodation in the workplace.
What is the ADA and Who is Protected?
- Prohibits Discrimination The ADA prohibits discrimination on the basis of disability in employment practices similar to the other discrimination laws. Simply put, an employer cannot treat an employee differently because of his/her disability. In the federal government, the law prohibiting discrimination is the Rehabilitation Act of 1973.
- Employer Size: An Employer must have at least 15 employees to be covered by the Federal ADA, but many state and local versions have no minimum requirement
- Requires Reasonable Accommodation in Some Cases In some cases the ADA requires employers to provide disabled employees with a “reasonable accommodation” in order for the employee to perform their job. Accommodation is only required where (1) the employee’s condition satisfies a certain level of severity and (2) the employee can demonstrate that he/she has the skills and abilities to perform the job in question.
(1) Individual with a Disability
An individual claiming protection under the ADA must not only be medically diagnosed with a disabling condition, but the law requires that the disability rise to the level where it substantially limits one or more major life activities. Major life activities are those that most persons would consider routine, but vital to daily living i.e. walking, breathing, seeing, hearing, speaking, and learning. The inability to perform one’s current job does not necessarily make one disabled.
(2) Employee Must be “Qualified”
The employee seeking an accommodation must also be qualified to do the job, meaning that regardless of the disability, he or she still satisfies the skill, experience, education, and other job-related requirements of the position held or desired, and can perform the essential functions of the job, assuming an accommodation is available.
Reasonable accommodation may include, but is not limited to, making existing facilities more readily accessible to and usable by persons with disabilities e.g. wheelchair ramps; job restructuring or modification of work schedules; providing additional unpaid leave; reassignment to a vacant position; acquiring or modifying equipment or devices; adjusting or modifying examinations, training materials, or policies; and providing qualified readers or interpreters (e.g. for deaf employees).
In some cases a reasonable accommodation may be required to permit a candidate to apply for a job, to perform job functions, or to enjoy the benefits and privileges of employment that are enjoyed by people without disabilities.
(A) Undue Hardship: The Limit on the Employer’s Duty
An employer is not required to go to extreme lengths or undergo an undue hardship in order to meet its burden in order to give an accommodation e.g. spending large sums of money, restructuring a significant portion of the workplace or operations, or lowering production standards. An employer is generally not obligated to provide personal use items such as eyeglasses or hearing aids.
The law takes into account the difficulty or expense the employer will have to undergo in relation to factors such as a business size, financial resources, and the nature and structure of its operation.
Amendments to the ADA: Effective January 1, 2009
Congress recently enacted amendments to the ADA, which make it easier for an employee’s condition to qualify as a covered disability. For example, the fact that the employee may now control the illness with medication, e.g. diabetes, or the fact that the condition e.g. cancer, is in remission, no longer defeats the claim. The legislation also now identifies a list of activities and bodily functions, which if limited can make an employee eligible for coverage.
Other Information About Disabilities in the Workplace
Prohibited Inquiries and Examinations
Before making an offer of employment, an employer may not ask job applicants about the existence, nature, or severity of a disability; however, applicants may be asked about their ability to perform job functions. A job offer may be conditioned on the results of a medical examination (e.g. urine sample), but only if the examination is required for all entering employees in the same job category. Medical examinations of employees must be job-related and consistent with business necessity. Lie detectors (or polygraphs) as well are generally prohibited unless you are dealing with a government agency or employer e.g. defense contractor, that has a unique national security or law enforcement function associated with it.
Drug Addiction and/or Alcohol Abuse
The ADA may cover alcohol and drug addiction; however, employees and applicants currently engaging in the illegal use of drugs are not protected when an employer takes action on the basis of such use. An employee may be required to show that they are or have been actively participating in a rehabilitation program.
Testing for illegal use of drugs is not considered a medical examination and may be done randomly. As a result, drug testing may not be subject to the ADA’s restrictions on medical examinations. Further, employers may hold individuals who are illegally using drugs and individuals with alcoholism to the same standards of performance as other employees. An employee may be required to show that they are or have been actively participating in a rehabilitation program.
If you need the help of an experienced employment discrimination lawyer, personal injury or insurance attorney in Maryland, Washington DC or Northern Virginia, please contact the Law Offices of Stuart L. Plotnick, LLC in Rockville, Maryland