HR and Employment Law Issues from A-Z

16Jun10

We have decided that in an effort to educate our readers about employment law we would post a new HR related employment law topic each day starting with “A” and ending with “Z”.  What better way to provide informative information regarding HR and employment law.  Please feel free to comment below with any questions you may have or additional topics that you would like to see on our blog.

So today’s letter “A” brings us to a very important employment discrimination law known as the “ADA”.  The Americans with Disabilities Act (“ADA”) was passed by Congress in 1990 in an effort to protect applicants and employees with disabilities from discrimination based on their disability.  It does not apply to all employers but only to employers that have 15 or more employees.  Title I of the ADA applies to employers. 

The ADA was amended on September 25, 2008 and the provisions of the amendments became effective on January 1, 2009.  The Amendements are known as the Americans with Disabilities Amendements Act (“ADAAA”). 

To be protected by the ADA you must fit the definition of disabled that is set forth in the ADA.  The ADA defines a disability as:

  • A physical or mental impairment that substantially limits one or more major life activities
  • A record of such an impairment; or
  • Being regarded as having such an impairment

Most ADA cases are brought under the first bullet but more cases may now be brought based on the third bullet the “regarded as” disabled definition.  So once an applicant or employee has met the definition of disabled what are an employer’s obligations?  Employers are prohibited from discriminating against an applicant or employee who is disabled.  With regard to applicants, the ADA prohibits pre-employment inquiries that would reveal that the applicant is disabled.  The ADA also prohibits medical examinations in the pre-offer stage until after a conditional offer of employment has been made.  Drug tests are allowed because the ADA specifically states that such tests are not “medical examinations”.  Once a conditional offer of employment has been made, an employer may give medical examinations but only if they are “job-related” and based on business necessity. 

With regard to employees, the ADA requires that the employer provide a “reasonable accommodation” to disabled employees.  The employer does not have to provide the precise accommodation that the employee requests but has to provide an accommodation that will enable the disabled employee to perform the essential functions of the job.  In determining what “reasonable accommodation” to provide, an employer must engage in the “interactive process” which is really a back-and-forth process involving the employee, the employer, the employee’s health care provider and is designed to determine the accommodation that will best enable the employee to perform the essential functions of the job.  Employers should be sure to document their efforts when engaging in the “interactive process” and consult with both HR as well as in-house or outside counsel.  In addition to the ADA, most states have fair employment laws that usually have a broader definition of disability.  These state laws also prohibit disability discrimination. 

For more in-depth information on the ADA, please visit our website at http://www.hrlearningcenter.com/ada.aspx.  For on-line ADA webinars, please visit our website at http://www.hrlearningcenter.com/fmlaadaleaveofabsenceissueswhatemployersneedtoknow.aspx.

Be sure to visit our blog tomorrow to see our post on HR employment law issues that begin with the letter “B” to continue with our series HR Employment Law Issues from A-Z.

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