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The Americans with Disabilities Act (ADA)

A diverse workforce is one that includes people with disabilities. The Americans with Disabilities Act (ADA) is a federal law designed to remove barriers to employment for qualified individuals with disabilities by prohibiting discrimination in the workplace.

The ADA is to be applied on a case-by-case basis, and at Work Without Limits, we seek to answer employers’ basic questions about the law and provide general guidance regarding compliance. Our site also provides resources with detailed information about this complex area of law. For legal advice regarding an actual employment situation, employers should consult an attorney experienced in the application of state and federal anti-discrimination laws.

Businesses subject to the ADA

The ADA applies to businesses with 15 or more employees while the Fair Employment Practices Law, a Massachusetts civil rights law also know as Chapter 151B, applies to employers with 6 or more employees. Although Chapter 151B is very similar to the ADA, there are specific situations in which the two laws have different requirements. Links to resources for more information on Chapter 151B are listed in Resources {internal link to Resources section}.
Recent changes to the ADA: The ADA Amendments Act of 2008

In 2008, Congress amended the Americans with Disabilities Act to restore the original intent of the legislation and overrule several recent Supreme Court decisions interpreting the law. Many of the changes made in the Americans with Disabilities Act Amendments Act of 2008 (Public Law 110-325) deal with the definition of disability. These changes are not yet reflected in the EEOC regulations, but must be followed by businesses seeking to comply with the ADA.

Requirements of the Americans with Disabilities Act

The ADA requires that employers refrain from discrimination against qualified persons with disabilities. For more information on discriminatory actions, please click here. [internal link: Home>For Employers>Information and Referral>Legal>The Americans with Disabilities Act>Requirements of the ADA]

Qualified individual with a disability

The ADA is intended to help qualified individuals with disabilities get and keep their jobs. To learn more about this definition, click here.

Definition of disability

The ADA does not contain a list of medical conditions or diagnoses that are considered disabilities. Instead, the law defines disability as a physical or mental impairment that substantially limits one or more of the major life activities of such individual. In addition, the term disability includes having a record of such an impairment or being regarded as having such an impairment.

Major Life Activity
As amended by the ADA Amendments Act, the term major life activity includes a broad array of functions that a person without disabilities might be expected to perform, but may be unable to do or may be substantially limited in doing compared to the average person. For more information on major life activity, click here. [internal link: Home>For Employers>Information and Referral>Legal>The Americans with Disabilities Act>Major Life Activity]

Mitigating measures
The ADA Amendments Act of 2008 requires that medication, equipment or other mechanisms used to mitigate the effects of a disability will not be considered when determining a disability. The one exception to this rule is ordinary eyeglasses or contact lenses. For example, an individual with epilepsy who takes medication would be considered as having a disability, even if the medication controlled his or her symptoms.

Conditions that are episodic or in remission
Under the ADA Amendments Act, conditions that are episodic or in remission are considered disabilities if they would substantially limit an individual’s ability to perform a major life activity when active. For example, a person with Bipolar Disorder (Manic Depression) who is asymptomatic most of the time may experience difficulty concentrating when the condition is active. This person would be considered disabled under the ADA.

Essential functions of a job
The essential functions of a job are the fundamental job duties of the employment position. Click here for more information on essential job functions. [internal link: Home>For Employers>Information and Referral>Legal>The Americans with Disabilities Act>Essential functions of a job]

In the job application or hiring process, there are questions that employers can and cannot ask of applicants, related to his or her disability. For more information, please click here. [internal link: Home>For Employers>Information and Referral>Legal>The Americans with Disabilities Act>Questions Employers Can and Cannot Ask]

Reasonable Accommodation
Many people with disabilities will say that they can do most of the things that an average person can do — they just do them differently. It’s important to be flexible and assist employees in doing their jobs differently by providing them with reasonable accommodations {internal link to Reasonable Accommodations section}.

Of course, there may be some job functions that the individual cannot perform, no matter how the job is changed, and in this case, a reasonable accommodation might be to reallocate the particular job function to someone else. Only those job functions that are not essential need to be reallocated. For more information about the EEOC regulations for reasonable accommodations, click here. [internal link: Home>For Employers>Information and Referral>Legal>The Americans with Disabilities Act>Reasonable Accommodations]

Undue Hardship
Employers are not required to make accommodations that would cause undue hardship [internal link: Home>For Employers>Information and Referral>Legal>The Americans with Disabilities Act>Undue Hardship].

Next steps

Using the information in the Resources section, consider whether there are steps your company could take to ensure that its facilities and operations are in full compliance with the spirit and letter of the law.

Educate your staff about accommodations, accessibility and attitudes with regard to persons with disabilities. Several programs such as The New England Disability and Business Technical Assistance Center and Windmills Program offer valuable training. {Link to these programs – links not provided}

Consult an attorney experienced in this area of law with additional questions about the ADA, generally, or with regard to a specific situation.

Resources

The ADA: Law and Regulations

ADA Materials from the Equal Employment Opportunity Commission (EEOC)

Technical Assistance Centers

The Job Accommodation Network
The Job Accommodation Network is a service provided by the U.S. Department of Labor’s Office of Disability Employment (ODEP). JAN provides information about job accommodations, entrepreneurship, and other work-related subjects. JAN has many resources available to employers.

The JAN website has an entire section devoted to employers. Of particular interest to employers may also be the following PDF publication: The Job Accommodation Network’s Employers’ Practical Guide to Reasonable Accommodation Under the Americans with Disabilities Act

Disability and Business Technical Assistance Center
Each region of the country has a Disability and Business Technical Assistance Center (DBTAC).

New England DBTAC, or New England ADA Center

The Southeast DBTAC has several helpful fact sheets for employers, called Employer Tidbits, listed below. Click here for the following fact sheets.

  • Determining Reasonable Accommodation & Undue Hardship – Part 1
  • Determining Reasonable Accommodation & Undue Hardship – Part 2
  • Identifying Essential Job Functions under the ADA
  • Anger under the ADA?
  • Reasonable Accommodation and Productivity
  • Reasonable Accommodations and the ADA
  • Essential Job Function Changes and the ADA
  • Determining Qualified Individual with Disability under ADA
  • Qualified Individual with Disability under the ADA
  • Employers and the ADA: Myths and Facts
  • Employee with Depression

Massachusetts State Resources

The Massachusetts Commission Against Discrimination
The Massachusetts Fair Employment Act applies to businesses with six or more employees and prohibits discrimination on the basis of disability.

Resources for the Fair Employment Practices Law can be found at:

Major Life Activity

As amended by the ADA Amendments Act, the term major life activity includes a broad array of functions that a person without disabilities might be expected to perform, but may be unable to do or may be substantially limited in doing compared to the average person. The law contains a list of such activities as examples, but there may be other activities not on the list that would be included as well.

As a result of the ADA Amendments Act, the activities listed now 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
  • working1

Major life activities now also include 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
  • reproductive functions2

The ADA Amendments Act of 2008 makes it clear that a person with diabetes may be considered an individual with a disability since he or she has an impairment of the endocrine system, a major bodily function.

Questions employers can and cannot ask of job applicants

An employer may not ask a job applicant about his or her disability, or any questions that might require the employee to reveal information about a disability prior to making a job offer.

An employer may ask an applicant:

  • about his or her ability to perform job-related functions, as long as the questions are not phrased in reference to a disability.
  • to describe or demonstrate how he or she will perform job-related functions, with or without reasonable accommodation.

An employer may not ask a job applicant if he or she has back pain or has ever been treated for back pain. An employer may ask a job applicant with a disability whether or not he or she can lift 25 pounds and ask the individual to demonstrate the ability to do so. The individual could request a dolly or similar equipment to assist in lifting the 25-pound item as a reasonable accommodation, as long as it would not cause undue hardship to the employer.

Qualified Individual With A Disability

A qualified individual with a disability is a person with a disability who is able to perform the essential functions of a job, with or without reasonable accommodation. In addition, the qualified individual must possess the skills, experience, and education required for the job, and must meet other job-related requirements .

Employers are also prohibited from discriminating against a qualified individual if he or she is associated with a person who has a known disability. This association may be a family, business, social or other relationship. However, not all protections of the ADA apply to these qualified individuals. For more information, please consult the resources listed in the Resources {internal link to Resources section} section.

An employer may not fire an employee because they learn that their spouse or domestic partner has HIV/AIDS nor may the employer make any changes to the individual’s health insurance or benefits based upon this information.

More Legal Information on Reasonable Accommodations

What is a reasonable accommodation?
For every business and every situation, the reasonable accommodation can be different. That’s why EEOC regulations have employers and employees engaging in an “informal, interactive process” to determine what accommodations might be reasonable in a given situation.

In other words, a business should work with its employees to determine how each individual should perform the essential functions of the job. The interpretive guidelines of the regulations note that this interactive process involves using a problem-solving approach and taking steps such as:

  • “(1) Analyz(ing) the particular job involved and determining its purpose and essential functions;
  • (2) Consult(ing) with the individual with a disability to ascertain the precise job-related limitations imposed by the disability and how those limitations could be overcome with a reasonable accommodation;
  • (3) Identify(ing) potential accommodations and assessing the effectiveness each would have in enabling the individual to perform the essential functions of the position; and
  • (4) Consider(ing) the preference of the individual to be accommodated and select(ing) and implement(ing) the accommodation that is most appropriate for both the employee and the employer.”

Employers should make the process for requesting accommodations clear to all employees. It can also be useful to have a designated ADA coordinator who is knowledgeable and trained to work with employees to address accommodations issues.

In some situations, it may be necessary for the employer to obtain technical assistance to identify and provide the necessary accommodation.

Technical assistance is available from a variety of sources including the Massachusetts Rehabilitation Commission and health care providers such as occupational therapists and other sources. Each region of the United States has a Disability and Business Technical Assistance Center {link to this resource in the Resource section} which can provide technical assistance.

In addition, the EEOC {link to EEOC resource in Resource section} and the Massachusetts Commission Against Discrimination {link to this resource in Resource section}, provides technical assistance. The Job Accommodations Network {link to this resource in Resource section} is also a very helpful resource.

Although an employer should consider the employee’s preference for being accommodated, this preference is not binding on the employer. The employer is only required to provide an accommodation that would enable the employee to “attain the same level of performance, or to enjoy the same level of benefits and privileges of employment as are available to the average similarly situated employee without a disability.”

Examples

  • Reallocating the occasional task of lifting heavy items to another employee rather than requiring an employee who is disabled by back pain to perform the task.
  • Requiring that another employee interact with customers rather than an individual who has a psychiatric disability and finds such interactions stressful. The individual with the disability would instead perform backroom duties without causing undue hardship to the employer.

Another kind of reasonable accommodation would be to change workplace rules or the work environment in ways that enable the person with a disability to be more productive.

Examples

  • Allowing a person with diabetes an additional break during the day to monitor their blood glucose levels;
  • Allowing someone whose disability makes him or her easily distracted to have a cubicle in the quietest section of the office.

Undue Hardship

Undue hardship exists when an accommodation would be unduly costly, extensive, or substantial, or would fundamentally alter the nature of the business.
However, even if a particular accommodation would impose undue hardship, the employer must consider if alternative accommodations would not impose such hardship.

The undue hardship exception is a narrow one. An employer should not refuse accommodation on the basis of undue hardship hastily.

When considering if an accommodation is an undue hardship, certain business factors must be considered, including:

  • the nature and cost of the accommodation needed
  • the overall financial resources of the employer’s facility or facilities involved in providing the reasonable accommodation (not just those of the department in which the individual will be working)
  • the number of persons employed at such facility
  • the effect on expenses and resources, or the impact otherwise of such accommodation upon the operation of the facility
  • the employer’s overall financial resources
  • the number of employees
  • the number, type, and location of its facilities
  • the type of operation or operations of the employer, including the composition, structure, and functions of the employer’s workforce
  • the geographic separateness, administrative, or fiscal relationship of the facility or facilities in question to the employer.



1Public Law 110-325, Section 4(a).

2Public Law 110-325, Section 4(a).