Q. What employers are covered by title I of the ADA, and when is the
A. The title I
employment provisions apply to private employers, State and local
governments, employment agencies, and labor unions. Employers with 25 or
more employees are covered as of July 26, 1992. Employers with 15 or more
employees are covered as of July 26, 1994.
Q. What practices and activities are covered by the employment
A. The ADA prohibits
discrimination in all employment practices, including job application
procedures, hiring, firing, advancement, compensation, training, and other
terms, conditions, and privileges of employment. It applies to recruitment,
advertising, tenure, layoff, leave, fringe benefits, and all other
Q. Who is protected from employment discrimination?
discrimination is prohibited against "qualified individuals with
disabilities." This includes applicants for employment and employees.
An individual is considered to have a "disability" if he/she 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. Persons discriminated against because they have
a known association or relationship with an individual with a disability
also are protected.
The first part of the definition makes clear that the ADA applies to
persons who have impairments and that these must substantially limit major
life activities such as seeing, hearing, speaking, walking, breathing,
performing manual tasks, learning, caring for oneself, and working. An
individual with epilepsy, paralysis, HIV infection, AIDS, a substantial
hearing or visual impairment, mental retardation, or a specific learning
disability is covered, but an individual with a minor, nonchronic condition
of short duration, such as a sprain, broken limb, or the flu, generally
would not be covered.
The second part of the definition protecting individuals with a record
of a disability would cover, for example, a person who has recovered from
cancer or mental illness.
The third part of the definition protects individuals who are regarded
as having a substantially limiting impairment, even though they may not
have such an impairment. For example, this provision would protect a
qualified individual with a severe facial disfigurement from being denied
employment because an employer feared the "negative reactions" of
customers or co-workers.
Q. Who is a "qualified individual with a disability"?
A. A qualified
individual with a disability is a person who meets legitimate skill,
experience, education, or other requirements of an employment position that
he/she holds or seeks, and who can perform the "essential
functions" of the position with or without reasonable accommodation.
Requiring the ability to perform "essential" functions assures
that an individual with a disability will not be considered unqualified
simply because of inability to perform marginal or incidental job functions.
If the individual is qualified to perform essential job functions except
for limitations caused by a disability, the employer must consider whether
the individual could perform these functions with a reasonable
accommodation. If a written job description has been prepared in advance of
advertising or interviewing applicants for a job, this will be considered
as evidence, although not conclusive evidence, of the essential functions
of the job.
Q. Does an employer have to give preference to a qualified applicant
with a disability over other applicants?
A. No. An employer is
free to select the most qualified applicant available and to make decisions
based on reasons unrelated to a disability. For example, suppose two
persons apply for a job as a typist and an essential function of the job is
to type 75 words per minute accurately. One applicant, an individual with a
disability, who is provided with a reasonable accommodation for a typing
test, types 50 words per minute; the other applicant who has no disability accurately
types 75 words per minute. The employer can hire the applicant with the
higher typing speed, if typing speed is needed for successful performance
of the job.
Q. What is "reasonable accommodation"?
accommodation is any modification or adjustment to a job or the work
environment that will enable a qualified applicant or employee with a
disability to participate in the application process or to perform
essential job functions. Reasonable accommodation also includes adjustments
to assure that a qualified individual with a disability has rights and
privileges in employment equal to those of employees without disabilities.
Q. What are some of the accommodations applicants and employees may
A. Examples of
reasonable accommodation include making existing facilities used by
employees readily accessible to and usable by an individual with s
disability; restructuring a job; modifying work schedules; acquiring or
modifying equipment; providing qualified readers or interpreters; or
appropriately modifying examinations, training, or other programs.
Reasonable accommodation also may include reassigning a current employee to
a vacant position for which the individual is qualified, if the person is
unable to do the original job because of a disability even with an
accommodation. However, there is no obligation to find a position for an
applicant who is not qualified for the position sought. Employers are not
required to lower quality or quantity standards as an accommodation; nor
are they obligated to provide personal use items such as glasses or hearing
The decision as to the appropriate accommodation must be based on the
particular facts of each case. In selecting the particular type of
reasonable accommodation to provide, the principal test is that of
effectiveness, i.e., whether the accommodation will provide an opportunity
for a person with a disability to achieve the same level of performance and
to enjoy benefits equal to those of an average, similarly situated person
without a disability. However, the accommodation does not have to ensure
equal results or provide exactly the same benefits.
Q. Can an employer be required to modify, adjust, or make other
reasonable accommodations in the way a test is given to a qualified
applicant or employee with a disability?
A. Yes. Accommodations
may be needed to assure that tests or examinations measure the actual
ability of an individual to perform job functions rather than reflect
limitations caused by the disability. Tests should be given to people who
have sensory, speaking, or manual impairments in a format that does not
require the use of the impaired skill, unless it is a job-related skill
that the test is designed to measure.
Q. When is an employer required to make a reasonable accommodation?
employer is only required to accommodate a "known" disability of
a qualified applicant or employee. The requirement generally will be
triggered by a request from an individual with a disability, who frequently
will be able to suggest an appropriate accommodation. Accommodations must
be made on an individual basis, because the nature and extent of a
disabling condition and the requirements of a job will vary in each case.
If the individual does not request an accommodation, the employer is not
obligated to provide one except where an individuals's known disability
impairs his/her ability to know of, or effectively communicate a need for,
an accommodation that is obvious to the employer. If a person with a
disability requests, but cannot suggest, an appropriate accommodation, the
employer and the individual should work together to identify one. There are
also many public and private resources that can provide assistance without
Q. What are the limitations on the obligation to make a reasonable
A. The individual with
a disability requiring the accommodation must be otherwise qualified, and
the disability must be known to the employer. In addition, an employer is
not required to make an accommodation if it would impose an "undue
hardship" on the operation of the employer's business. "Undue
hardship" is defined as an "action requiring significant
difficulty or expense" when considered in light of a number of
factors. These factors include the nature and cost of the accommodation in
relation to the size, resources, nature, and structure of the employer's
operation. Undue hardship is determined on a case-by-case basis. Where the
facility making the accommodation is part of a larger entity, the structure
and overall resources of the larger organization would be considered, as
well as the financial and administrative relationship of the facility to
the larger organization. In general, a larger employer with greater
resources would be expected to make accommodations requiring greater effort
or expense than would be required of a smaller employer with fewer
If a particular accommodation would be an undue hardship, the employer
must try to identify another accommodation that will not pose such a
hardship. Also, if the cost of an accommodation would impose an undue
hardship on the employer, the individual with a disability should be given
the option of paying that portion of the cost which would constitute an
undue hardship or providing the accommodation.
Q. Can an employer be required to reallocate an essential function of a
job to another employee as a reasonable accommodation?
A. No. An employer is
not required to reallocate essential functions of a job as a reasonable
Q. Can an employer maintain existing production/performance standards
for an employee with a disability?
A. Yes. An employer can
hold employees with disabilities to the same standards of
production/performance as other similarly situated employees without
disabilities for performing essential job functions, with or without
reasonable accommodation. An employer also can hold employees with
disabilities to the same standards of production/performance as other
employees regarding marginal functions unless the disability affects the
person's ability to perform those marginal functions. If the ability to
perform marginal functions is affected by the disability, the employer must
provide some type of reasonable accommodation such as job restructuring but
may not exclude an individual with a disability who is satisfactorily
performing a job's essential functions.
Q. Can an employer establish specific attendance and leave policies?
A. Yes. An employer can
establish attendance and leave policies that are uniformly applied to all
employees, regardless of disability, but may not refuse leave needed by an
employee with a disability if other employees get such leave. An employer
also may be required to make adjustments in leave policy as a reasonable
accommodation. The employer is not obligated to provide additional paid
leave, but accommodations may include leave flexibility and unpaid leave.
A uniformly applied leave policy does not violate the ADA because it
has a more severe effect on an individual because of his/her disability.
However, if an individual with a disability requests a modification of such
a policy as a reasonable accommodation, an employer may be required to
provide it, unless it would impose an undue hardship.
Q. Can an employer consider health and safety when deciding whether to
hire an applicant or retain an employee with a disability?
A. Yes. The ADA permits
employers to establish qualification standards that will exclude
individuals who pose a direct threat - i.e., a significant risk of
substantial harm - to the health or safety of the individual or of others,
if that risk cannot be eliminated or reduced below the level of a
"direct threat" by reasonable accommodation. However, an employer
may not simply assume that a threat exists; the employer must establish
through objective, medically supportable methods that there is significant
risk that substantial harm could occur in the workplace. By requiring
employers to make individualized judgments based on reliable medical or
other objective evidence rather than on generalizations, ignorance, fear,
patronizing attitudes, or stereotypes, the ADA recognizes the need to
balance the interests of people with disabilities against the legitimate
interests of employers in maintaining a safe workplace.
Q. Is testing for the illegal use of drugs permissible under the ADA?
A. Yes. A test for the
illegal use of drugs is not considered a medical examination under the ADA;
therefore, employers may conduct such testing of applicants or employees
and make employment decisions based on the results. The ADA does not
encourage, prohibit, or authorize drug tests.
If the results of a drug test reveal the presence of a lawfully
prescribed drug or other medical information, such information must be
treated as a confidential medical record.
Q. Are alcoholics covered by the ADA?
A. Yes. While a current illegal user of drugs is
not protected by the ADA if an employer acts on the basis of such use, a
person who currently uses alcohol is not automatically denied protection.
An alcoholic is a person with a disability and is protected by the ADA if
he/she is qualified to perform the essential functions of the job. An
employer may be required to provide an accommodation to an alcoholic.
However, an employer can discipline, discharge or deny employment to an
alcoholic whose use of alcohol adversely affects job performance or
conduct. An employer also may prohibit the use of alcohol in the workplace
and can require that employees not be under the influence of alcohol.