ADA-101 - Just The Basics
Individual with a Disability
An individual with a disability under the ADA is a person who 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. Major life activities are activities that an average person can perform with little or no difficulty such as walking, breathing, seeing, hearing, speaking, learning, and working.
Qualified Individual with a Disability
A qualified employee or applicant with a disability is someone who satisfies skill, experience, education, and other job-related requirements of the position held or desired, and who, with or without reasonable accommodation, can perform the essential functions of that position.
Reasonable Accommodation
Reasonable accommodation may include, but is not limited to, making existing facilities used by employees readily accessible to and usable by persons with disabilities; job restructuring; 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. Reasonable accommodation may be necessary 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. An employer is not required to lower production standards to make an accommodation. An employer generally is not obligated to provide personal use items such as eyeglasses or hearing aids.
Undue Hardship
An employer is required to make a reasonable accommodation to a qualified individual with a disability unless doing so would impose an undue hardship on the operation of the employer's business. Undue hardship means an action that requires significant difficulty or expense when considered in relation to factors such as a business' size, financial resources, and the nature and structure of its operation.
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. Applicants may be asked about their ability to perform job functions. A job offer may be conditioned on the results of a medical examination, 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.
Drug and Alcohol Use
Employees and applicants currently engaging in the illegal use of drugs are not protected by the ADA when an employer acts on the basis of such use. Tests for illegal use of drugs are not considered medical examinations and, therefore, are not subject to the ADA's restrictions on medical examinations. Employers may hold individuals who are illegally using drugs and individuals with alcoholism to the same standards of performance as other employees.
Readily Achievable
Readily Achievable refers to barrier removal that is "easily accomplishable and able to be carried out without much difficulty or expense."
How is "Readily Achievable" Determined in a Multi-Site Business ?
In determining whether an action to make a public accommodation accessible would be "readily achievable," the overall size of the Parent Corporation or entity is only one factor to be considered. The ADA also permits consideration of the financial resources of the particular facility or facilities involved and the administrative or fiscal relationship of the facility or facilities to the parent entity.
The Americans with Disabilities Act has several section or "Titles". The Titles that apply to most employers and businesses are;
Title I of the ADA DOES NOT REQUIRE you to hire an unqualified person with a disability, for that matter it does not require you to hire a person with a disability at all. What Title I says, in the simplest of terms, is that you cannot refuse to hire a qualified person with a disability based on their disability.
So if you want to hire your brother in law over someone with a disability, because he's your brother in law, you still can. You just can't deny a job to a qualified candidate because they use a wheelchair or are blind or deaf or have some type of mental illness. When you think about it the ADA is about hiring the most qualified person for the job and isn't that who you want working for you anyway, with or without a disability ?
Title I covers all aspect of employment including recruitment, hiring, training, promotion, discipline, benefits and termination.
The two biggest requirements of Title I are:
First - There can be NO MEDICAL INQUIRIES made until a conditional offer of employment is made to the applicant. This means that there can be no medical questions on the application or during the interview. After the conditional offer of employment is made, JOB RELATED medical inquiries can be made, including physical and psychological exams (Job Related Only). This is intended to level the playing field and determine who is the most qualified applicant, regardless of disability.
Secondly - An employer must provide a Reasonable Accommodation to an employee or applicant with a disability if it is needed to allow them equal access, opportunity or enjoyment of benefits. This accommodation is based on need and is determined by the employer, hopefully with consideration given to the knowledge and experience of the person with the disability. We always tell people that if a "Yugo" will do the job but the employee wants a "Cadillac" maybe you could both agree on a "Chevy". What we mean is that accommodations don't have to cost a lot of money to be effective.
Some example of Reasonable Accommodation include:
Title II is far reaching, state or local government entities must provide equal access to their services or offer a similar and equitable service to people with disabilities. This means that everything from swimming lessons to 911 calls to municipal meetings is covered. Covered entities must also complete a "Transition Plan" describing how they will comply with the ADA.
The right to participate in state and local government services, opportunities, meetings or programs should not be denied because a person has a disability. The ADA requires that "Program Access" be provided and physical access, modification to policies and procedures and effective communication are all used to accomplish this. If public transportation is offered by a state or local government entity then it also must be accessible or provide a para-transit system for people with disabilities.
Title III has the greatest effect on most businesses. The basic point of Title III is that businesses that deal directly with the public must either be accessible or offer equivalent services.
Some types of businesses covered would be:
Businesses are required to operate in a way that does not discriminate against people with disabilities. This can be done in many ways and is determined on a case-by-case basis. Policies may need to be modified, eligibility criteria reviewed and services altered, if it does not require a "fundamental" change to the nature of the business.
Title III also covers Physical Access and Removal of Structural Barriers. This is addressed in the ADA Accessibility Guidelines (ADAAG) in three sections. It is important to note that NO COVERED BUSINESS IS TOTALLY EXEMPT FROM ADAAG COMPLIANCE
Existing Structures
Structures built BEFORE January 26 1992 are not required to FULLY comply with the ADAAG standards instead they are REQUIRED to remove barriers that are readily achievable. This means without much difficulty or expense or in plain terms if the access problem can be fixed cheaply and easily then it is probably required. This is an ongoing process and the ability to remove barriers should be reviewed as circumstances change.
Alterations and Renovations
If an existing structure is altered or renovated than the altered area MUST COMPLY and, in cases involving Primary Function areas, access improvements to entrances, rest rooms, parking and other path of travel items may also be required.
New Construction
ALL NEW CONSTRUCTION, with very few exceptions, BUILT/PERMITTED AFTER JANUARY 26 1992 MUST COMPLY FULLY WITH THE ADAAG GUIDELINES.
Exception to the ADAAG standards are very limited - Churches, Structures owned by Native American Tribes and very rarely Structural Infeasibility are among the exceptions.
Each Title of the ADA has specific enforcement provisions but it is good to remember that the ADA is a FEDERAL LAW and the US Department of Justice and the Equal Employment Opportunity Commission are the two primary enforcement agencies. Federal FINES AND PENALTIES may be levied.
Civil court action is also among the enforcement options with some sections allowing up to $300,000 dollars in damages.
There are two things that the enforcement section of the ADA does not mention. First is the damage to the reputation to your business if a complaint should be filed, especially if it is for the lack of a simple, low cost solution. The second is the loss of income from the 54 million people with disabilities that cannot purchase your goods and services if you aren't accessible to them
Throughout the ADA mediation and alternative dispute resolution are encouraged.
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