August 24, 2021
Americans with Disabilities Act: 6 Things Every Employer Must Know

Are you an employer with a growing team? If so, it is time you pay attention to the Americans with Disabilities Act and understand these important regulations. 

In our straightforward guide, we’re answering:

  • What is the Americans with Disabilities Act? 
  • Who must comply?
  • Who is protected?
  • How should employers initiate the interactive process?
  • What is a reasonable accommodation?
  • When is a reasonable accommodation considered an undue hardship?

Read on for answers to these six crucial questions.

What is the Americans with Disabilities Act?

The Americans with Disabilities Act of 1990 (ADA) makes it illegal to discriminate against qualified individuals with disabilities in: 

  • Employment
  • State and local government services
  • Public accommodations
  • Transportation
  • Telecommunications

The ADA was amended in 2008 with several significant changes, including broadening the definition of “disability.”

As an employer, you must understand the part of the ADA that outlaws job discrimination, which is enforced by the Equal Employment Opportunity Commission (EEOC).

Who must comply with the ADA?

According to the EEOC, employers that have to comply with ADA regulations include:

  • Private employers
  • State and local governments
  • Employment agencies
  • Labor organizations
  • Labor management committees

Basically, the ADA prohibits job discrimination by all employers, including State and local government agencies, with 15 or more employees. Therefore, it is illegal to discriminate in all employment-related activities, including but not limited to: 

  • Recruitment
  • Pay
  • Hiring
  • Firing
  • Promotion
  • Job assignments
  • Training
  • Leave
  • Lay-off
  • Benefits

This also means employers cannot: 

  • Retaliate against an applicant or employee who enacts their rights under the ADA, or
  • Discriminate against an individual (disabled or not) because of their family, business, social, or other relationship or association with an individual with a disability.

Who is protected?

Applicants and employees with substantial physical or mental impairments are protected by the ADA. This includes those who are considered to have a substantial impairment currently and those who have a record of a substantially limiting impairment.

A substantial impairment is a disability that significantly limits or restricts a major life activity, such as: 

  • Hearing
  • Seeing
  • Speaking
  • Breathing
  • Performing manual tasks
  • Walking
  • Caring for oneself
  • Learning
  • Working

More specifically, the ADA Amendments Act (ADAAA) includes the following impairments: 

  • Deafness
  • Blindness
  • Intellectual disabilities
  • Completely or partially missing limbs
  • Mobility impairments requiring the use of a wheelchair
  • Autism
  • Cancer
  • Cerebral Palsy
  • Diabetes
  • Epilepsy
  • HIV or AIDS
  • Multiple Sclerosis
  • Muscular Dystrophy
  • Major depression
  • Bipolar Disorder
  • Post-traumatic Stress Disorder
  • Obsessive-compulsive Disorder
  • Schizophrenia

An ADA-covered individual must also be qualified for the job with or without reasonable accommodation, meaning they must:

  • Meet job requirements regarding educational background, employment experience, skills, licenses, and any other job-related qualifications; and
  • Be able to perform essential job functions with or without reasonable accommodation.

The ADA only bans discrimination against a qualified applicant or employee based on their disability. Employers still have the right to hire and promote the most qualified candidates, and the law does not contain any affirmative action obligations.

What about individuals with substance use disorders?

Drugs and alcohol are a delicate area when it comes to ADA compliance. 

Individuals who are currently using illegal drugs are not protected by the ADA, nor are those who use drugs casually. According to the EEOC, employers may still administer drug tests to applicants or employees for current illegal drug use and make employment decisions based on verified test results. However, those who are addicted to drugs, have a history of addiction, or who are regarded as being addicted are considered to have an impairment under the law.

Employers should also note that a person with alcohol use disorder is considered to have a disability and is protected by the ADA if they are qualified to perform the essential job functions. While you may be required to provide reasonable accommodation to an applicant or employee with alcoholism, you can discipline, discharge, or deny employment to an individual whose alcohol use negatively impacts job performance or conduct. Employers may also prohibit the use of alcohol in the workplace and can require that employees not be under the influence of alcohol.

How should employers initiate the interactive process?

The interactive process is a conversation about an applicant’s or employee’s disability that ensures compliance with ADA regulations. Through this process, the applicant/employee, healthcare provider, and employer discuss the nature of the disability and possible limitations on the individual’s ability to perform the essential job duties.

Although not required, employers should have a policy and process in place for those who need to submit a request for accommodation. These requests should be directed to HR, not supervisors, as HR professionals are much better equipped to handle the nuances and legal risks of ADA requests.

To conduct the interactive process, employers should: 

  1. Review the accommodation request from the applicant/employee or their healthcare provider. The ADA does not require written requests, but it is best practice to document everything throughout the process.
  2. Obtain written medical release or permission from the applicant or employee. You will need this permission before a medical professional can disclose information or answer questions about the individual’s disability.
  3. Request that the employee provide appropriate documentation from their healthcare provider about the nature of their impairment(s), severity, duration, activities limited by the impairment(s), and how the impairment(s) limit the employee’s ability to perform the job’s essential duties/functions.

What is a reasonable accommodation?

According to the EEOC, “Reasonable accommodation is any change or adjustment to a job or work environment that permits a qualified applicant or employee with a disability to participate in the job application process, to perform the essential functions of a job, or to enjoy benefits and privileges of employment equal to those enjoyed by employees without disabilities.”

Reasonable accommodation examples can include everything from adjusted work schedules and remote work to installing elevators and renovating restrooms to make them accessible.

When is a reasonable accommodation considered an undue hardship?

Employers do not need to provide reasonable accommodation if doing so would cause an undue hardship, meaning it would:

  • Be excessively costly, extensive, substantial, or disruptive, or
  • Fundamentally change the nature of the job or operation of the business.

When an employer uses the “undue hardship” rationale, the EEOC will consider several factors, including: 

  • Cost of the accommodation
  • Size of the employer
  • Employer’s financial resources
  • Nature and structure of the employer’s operation

If you determine an accommodation to be an undue hardship, you must attempt to find another accommodation that will not create such a burden. Your HR and legal counsel can help you assess accommodation requests and search for alternatives in cases of undue hardship. 

If you need assistance developing an ADA policy, contact BlueLion today at 603-818-4131 or! Our HR experts will be happy to help you establish a thorough process and safe work environment for all employees.

The information on this website, including its newsletters, is not, nor is it intended to be, legal advice. You should contact an attorney or HR specialist for advice on your individual situation.