The ADA: Your Employment Rights as an Individual With a Disability

Transcription

1 The ADA: Yur Emplyment Rights as an Individual With a Disability The U.S. Equal Emplyment Opprtunity Cmmissin ADDENDUM Since The Americans with Disabilities Act: Yur Respnsibilities as an Emplyer was published, the Supreme Curt ruled that the determinatin f whether a persn has an ADA disability must take int cnsideratin whether the persn is substantially limited in perfrming a majr life activity when using a mitigating measure. This means that if a persn has little r n difficulty perfrming any majr life activity because s/he uses a mitigating measure, then that persn will nt meet the ADA s first definitin f disability. The Supreme Curt s rulings were in Suttn v. United Airlines, Inc., 527 U.S. (1999), and Murphy v. United Parcel Service, Inc., 527 U.S. (1999). Because f the Supreme Curt s ruling, this dcument s guidance n mitigating measures, fund in the sectin Additinal Questins and Answers n the Americans with Disabilities Act, is superseded. Fllwing the Supreme Curt s ruling, whether a persn has an ADA disability is determined by taking int accunt the psitive and negative effects f mitigating measures used by the individual. The Supreme Curt s ruling des nt change anything else in this dcument. Fr mre infrmatin n the Supreme Curt rulings and their impact n determining whether specific individuals meet the definitin f disability, cnsult the Instructins fr Field Offices: Analyzing ADA Charges After Supreme Curt Decisins Addressing Disability and Qualified, which can be fund n EEOC s website at The Americans with Disabilities Act f 1990 (ADA) makes it unlawful t discriminate in emplyment against a qualified individual with a disability. The ADA als utlaws discriminatin against individuals with disabilities in State and lcal gvernment services, public accmmdatins, transprtatin and telecmmunicatins. This dcument explains the part f the ADA that prhibits jb discriminatin. The U.S. Equal Emplyment Opprtunity Cmmissin alng with State and lcal civil rights enfrcement agencies, wrk t enfrce this part n the law. Which Emplyers Des the ADA Cver? Jb discriminatin against peple with disabilities is illegal if practiced by: private emplyers, state and lcal gvernments, emplyment agencies,

2 labr rganizatins, and labr-management cmmittees. The part f the ADA enfrced by the EEOC utlaws jb discriminatin by: all emplyers, including State and lcal gvernment emplyers, with 25 r mre emplyees after July 26, 1992, and all emplyers, including State and lcal gvernment emplyers, with 15 r mre emplyees after July 26, Anther part f the ADA, enfrced by the U.S. Department f Justice, prhibits discriminatin in State and lcal gvernment prgrams and activities, including discriminatin by all State and lcal gvernments, regardless f the number f emplyees, after January 26, Because the ADA establishes verlapping respnsibilities in bth EEOC and DOJ fr emplyment by State and lcal gvernments, EEOC and DOJ crdinate the Federal enfrcement effrt t avid duplicatin in investigative and enfrcement activities. In additin, since nndiscriminatin and affirmative actin requirements under the Rehabilitatin Act f 1973 cvers sme private and gvernmental emplyers, EEOC, DOJ, and the Department f Labr similarly crdinate the enfrcement effrt under the ADA and the Rehabilitatin Act. Des the ADA Prtect Yu? If yu have a disability and are qualified t d a jb, the ADA prtects yu frm jb discriminatin based n yur disability. Under the ADA, yu have a disability if yu have a physical r mental impairment that substantially limits a majr life activity. The ADA als prtects yu if yu have a histry f such a disability, r if an emplyer believes that yu have such a disability, even if yu d nt pssess the disability. Fr ADA prtectin t apply, yu must have a recrd f a substantial, as ppsed t a minr impairment. A substantial impairment is ne that significantly limits r restricts a majr life activity such as hearing, seeing, speaking, walking, breathing, and perfrming manual tasks, caring fr self, learning r wrking. If yu have a disability, yu must als be qualified t perfrm the essential functins r duties f a jb, with r withut reasnable accmmdatin, fr the ADA t prtect yu frm jb discriminatin. This means tw things. First, yu must satisfy the emplyer s requirements fr the jb, such as educatin, emplyment experience, skills, r licenses. Secnd, yu must be able t perfrm the essential functins f the jb with r withut reasnable accmmdatin. Essential functins are the fundamental jb duties that yu must be able t perfrm n yur wn r with the help f a reasnable accmmdatin. An emplyer cannt refuse t hire yu because yur disability prevents yu frm perfrming duties that are nt essential t the jb. What is Reasnable Accmmdatin?

3 Reasnable accmmdatin is any change r adjustment t a jb r wrk envirnment that permits a qualified applicant r emplyee with a disability t participate in the jb applicatin prcess, t perfrm the essential functins f a jb, r t enjy benefits and privileges f emplyment equal t thse enjyed by emplyees withut disabilities. Fr example, reasnable accmmdatin may include: prviding r mdifying equipment r devices, jb restructuring, part-time r mdified wrk schedules, reassignment t a vacant psitin, adjusting r mdifying examinatins, training materials, r plicies, prviding readers and interpreters, and making the wrkplace readily accessible t and usable by peple with disabilities. An emplyer is required t prvide a reasnable accmmdatin t a qualified applicant r emplyee with a disability unless the emplyer can shw that the accmmdatin wuld be an undue hardship that is, that it wuld require significant difficulty r expense. What Emplyment Practices des ADA Cver? The ADA makes it unlawful t discriminate in all emplyment practices such as: recruitment, firing, hiring, training, jb assignments, prmtins, pay, benefits, lay ff, leave, all ther emplyment related activities. It is als unlawful fr an emplyer t retaliate against yu fr asserting yur rights under the ADA. The Act als prtects yu if yu are a victim f discriminatin because f yur family, business, scial r ther relatinship r assciatin with an individual with a disability.

4 Can an Emplyer Require Medical Examinatins r Ask Questins Abut a Disability? If yu are applying fr a jb, an emplyer cannt ask if yu are disabled. An emplyer als cannt ask abut the nature r severity f yur disability. An emplyer can ask if yu can perfrm the duties f the jb with r withut reasnable accmmdatin. An emplyer can als ask yu t describe r t demnstrate hw with r withut a reasnable accmmdatin yu can perfrm the duties f the jb. An emplyer cannt require yu t take a medical examinatin befre ffering yu a jb. Fllwing a jb ffer, an emplyer can cnditin the ffer n yur passing a required medical examinatin, but nly if all entering emplyees fr that jb categry have t take the examinatin. Hwever, an emplyer cannt reject yu because f infrmatin abut yur disability revealed by the medical examinatin, unless the reasns fr rejectin are jb-related and necessary fr the cnduct f the emplyer s business. The emplyer cannt refuse t hire yu because f yur disability if yu can perfrm the essential functins f the jb with an accmmdatin. Once hired and wrking, yur emplyer cannt require that yu take a medical examinatin r ask questins abut yur disability unless they are related t yur jb and necessary fr the cnduct f yur emplyer s business. Yur emplyer may cnduct vluntary medical examinatins that are part f an emplyee health prgram, and may prvide medical infrmatin required by State wrkers cmpensatin laws t the agencies that administer such laws. The results f all medical examinatins must remain cnfidential and kept in separate medical files. Des An Individual Wh Uses Drugs Illegally Have Rights Under the ADA? The ADA des nt prtect anyne currently using drugs illegally. Emplyers can fire individuals fr using illegal drugs. The ADA des nt prevent emplyers frm testing applicants r emplyees fr current illegal drug use. What Shuld I d When I Believe I Have Undergne Discriminatin? After July 26, 1992, if yu feel discriminated against by an emplyer, yu shuld cntact the U.S. Equal Emplyment Opprtunity Cmmissin. Yu must file yur discriminatin cmplaint within 180 days f the alleged discriminatin. Yu may have up t 300 days t file a discriminatin charge, if a State r lcal law prvides relief fr disability-based discriminatin. Hwever, if yu suspect discriminatin, t prtect yur rights, it is best t cntact EEOC prmptly. Yu may file a disability-based charge f discriminatin by cntacting any EEOC field ffice, lcated in cities thrughut the United States. If discriminated against, yu are entitled t a remedy that will place yu in the psitin yu wuld have been in if the discriminatin never ccurred. Yu may be entitled t hiring, prmtin, reinstatement, back pay, r reasnable accmmdatin, including reassignment. Yu may als be entitled t attrney s fees.

5 While the EEOC can nly prcess ADA charges based n actins ccurring n r after July 26, 1992, State, lcal laws r ther current federal laws may prtect yu. EEOC field ffices can refer yu t the agencies that enfrce thse laws. T cntact the EEOC, lk in yur telephne directry under U.S. Gvernment. Fr infrmatin and instructins n reaching yur lcal ffice, call: (800) (Vice) (800) (TDD) (In the Washingtn, D.C. 202 Area Cde, call (vice) r (TDD).) Can I Get Additinal ADA Infrmatin and Assistance? The EEOC cnducts an active technical assistance prgram t prmte vluntary cmpliance with the ADA. This prgram is designed t help peple with disabilities understand their rights and t help emplyers understand their respnsibilities under the law. In January 1992, EEOC published a Technical Assistance Manual, prviding practical applicatin f legal requirements t specific emplyment activities, with a directry f resurces t aid cmpliance. EEOC publishes ther educatinal materials, prvides training n the law fr peple with disabilities and fr emplyers, and participates in meetings and training prgrams f ther rganizatins. EEOC staff als will respnd t individual requests fr infrmatin and assistance. The Cmmissin s technical assistance prgram is separate and distinct frm its enfrcement respnsibilities. Emplyers wh seek infrmatin r assistance frm the Cmmissin will nt be subject t any enfrcement actin because f such inquiries. The Cmmissin als recgnizes that misunderstandings abut ADA requirements may prmpt differences and disputes between emplyers and peple with disabilities. Infrmal negtiatin and mediatin prcedures can frequently reslve such disputes mre effectively than the frmal enfrcement prcess f the ADA. Accrdingly, EEOC will encurage effrts f emplyers and individuals with disabilities t settle such differences thrugh alternative methds f dispute reslutin, prviding that such effrts d nt deprive any individual f legal rights prvided by the statute. Mre Questins and Answers abut the ADA Q. Is an emplyer required t prvide reasnable accmmdatin when I apply fr a jb? A. Yes. Applicants, as well as emplyees, are entitled t reasnable accmmdatin. Fr example, an emplyer may be required t prvide a sign language interpreter during a jb interview fr an applicant wh is deaf r hearing impaired, unless t d s wuld impse an undue hardship. Q. Shuld I tell my emplyer that I have a disability?

6 A. If yu think yu will need a reasnable accmmdatin in rder t participate in the applicatin prcess r t perfrm essential jb functins, yu shuld infrm the emplyer that yu need an accmmdatin. Emplyers are required t prvide reasnable accmmdatin nly fr the physical r mental limitatins f a qualified individual with a disability f which they are aware. Generally, it is the respnsibility f the emplyee t infrm the emplyer that they need an accmmdatin. Q. D I have t pay fr a needed reasnable accmmdatin? A. N. The ADA requires that the emplyer prvide the accmmdatin unless t d s wuld impse an undue hardship n the peratin f the emplyer s business. If the cst f prviding the needed accmmdatin wuld be an undue hardship, the emplyee must be given the chice f prviding the accmmdatin r paying fr the prtin f the accmmdatin that causes the undue hardship. Q. Can an emplyer lwer my salary r pay me less than ther emplyees ding the same jb because I need a reasnable accmmdatin? A. N. An emplyer cannt make up the cst f prviding a reasnable accmmdatin by lwering yur salary r paying yu less than ther emplyees in similar psitins. Q. Des an emplyer have t make nn-wrk areas used by emplyees, such as cafeterias, lunges, r emplyer-prvided transprtatin accessible t peple with disabilities? A. Yes. The requirement t prvide reasnable accmmdatin cvers all services, prgrams, and nn-wrk facilities prvided by the emplyer. If making an existing facility accessible wuld be an undue hardship, the emplyer must prvide a cmparable facility that will enable a persn with a disability t enjy benefits and privileges f emplyment similar t thse enjyed by ther emplyees, unless t d s wuld be an undue hardship. Q. If an emplyer has several qualified applicants fr a jb, is the emplyer required t select a qualified applicant with a disability ver ther applicants withut a disability? A. N. The ADA des nt require that an emplyer hire an applicant with a disability ver ther applicants because the persn has a disability. The ADA nly prhibits disability-based discriminatin. It makes it unlawful t refuse t hire a qualified applicant with a disability because he is disabled r because a reasnable accmmdatin is required t make it pssible fr this persn t perfrm essential jb functins. Q. Can an emplyer refuse t hire me because he believes that it wuld be unsafe, because f my disability, fr me t wrk with certain machinery required t perfrm the essential functins f the jb? A. The ADA permits an emplyer t refuse t hire an individual if she pses a direct threat t the health r safety f herself r thers. A direct threat means a significant risk f substantial harm. Emplyers must base a direct threat determinatin n bjective, factual evidence regarding an individual s present ability t perfrm essential functins

7 f a jb. An emplyer cannt refuse t hire yu because f a slightly increased risk r because f fears that there might be a significant risk smetime in the future. The emplyer must als cnsider whether they can reduce r eliminate a risk with a reasnable accmmdatin. Q. Can an emplyer ffer a health insurance plicy that excludes cverage fr pre-existing cnditins? A. Yes. The ADA des nt affect pre-existing cnditin clauses cntained in health insurance plicies even thugh such clauses may adversely affect emplyees with disabilities mre than ther emplyees. Q. If the health insurance ffered by my emplyer des nt cver all f the medical expenses related t my disability, des the cmpany have t btain additinal cverage fr me? A. N. The ADA nly requires that an emplyer prvide emplyees with disabilities equal access t whatever health insurance cverage he/she ffers t ther emplyees. Q. My wife is disabled and I think my emplyer discriminated against me because f her disability. Can I file a charge with the EEOC? A. Yes. The ADA makes it unlawful t discriminate against an individual, whether disabled r nt, because f a relatinship r assciatin with an individual with a knwn disability. Q. Are peple with AIDS cvered by the ADA? A. Yes. The legislative histry indicates that Cngress intended the ADA t prtect persns with AIDS and HIV disease frm discriminatin. Fr mre specific infrmatin abut ADA requirements affecting emplyment cntact: Equal Emplyment Opprtunity Cmmissin 1801 L Street, NW Washingtn, DC (800) (Vice), (800) (TDD) (202) (Vice - fr 202 Area Cde) (202) (TDD - fr 202 Area Cde) Fr mre specific infrmatin abut ADA requirements affecting public accmmdatins and State and lcal gvernment services cntact: Department f Justice Office n the Americans with Disabilities Act Civil Rights Divisin P.O. Bx Washingtn, DC (202) (Vice)

8 (202) (TDD) (202) (TDD) Fr mre specific infrmatin abut requirements fr accessible design in new cnstructin and alteratins cntact: Architectural and Transprtatin Barriers Cmpliance Bard th Street, NW Suite 501 Washingtn, DC USA-ABLE 800-USA-ABLE (TDD) Fr mre specific infrmatin abut ADA requirements affecting transprtatin cntact: Department f Transprtatin 400 Seventh Street, SW Washingtn, DC (202) (202) (TDD) Fr mre specific infrmatin abut ADA requirements fr telecmmunicatins cntact: Federal Cmmunicatins Cmmissin 1919 M Street, NW Washingtn, DC (202) (202) (TDD) Dcument Surce: THE ABILITY CENTER 5605 Mnre Street Sylvania, OH (V/TTY)