The Americans with Disabilities Act (ADA) became effective on January 1, 1991. While the ADA itself does not list all impairments that are covered, it prohibits discrimination against people with disabilities in employment, transportation, communications, public accommodations, and participating in government programs and services. The ADA provides a three-prong definition of disability as 1. a physical or mental impairment that substantially limits one or more major life activities; 2. has a record of such an impairment; or 3. is an individual who is considered as having such an impairment.
There are multiple federal agencies that have responsibility to enforce the ADA. The Civil Rights Center (CRC) and the Office of Federal Contract Compliance Programs (OFCCP) have enforcement duties for employment-related provisions of the ADA, in regards to government contractors, state and local governments, and other public entities. Other agencies that provide enforcement for the ADA include:
- Equal Employment Opportunity Commission (EEOC) – The EEOC prohibits private employers, state and local governments, employment agencies, and labor unions from discriminating against qualified individuals with disabilities in areas such as job assignments, position descriptions, and training.
- U.S. Department of Transportation (DOT) – The DOT ensures that those who receive federal aid and state and local governments responsible for roadways and pedestrian facilities do not discriminate on the basis of disability in highway transportation programs or activities.
- Federal Communications Commission (FCC) – The FCC requires telephone, television, and internet companies to provide access for people with hearing and speech disabilities.
- U.S. Department of Justice (DOJ) – The DOJ enforces state and local governmental services and public accommodations.
- U.S. Department of Health and Human Services (HHS) – The HHS ensures that those with a hearing disability have access to sign language interpreters and other auxiliary aids in hospitals and clinics.
- Architectural and Transportation Barriers Compliance Board (ATBCB) – The ATBCB issues guidelines to ensure that buildings and transit vehicles are accessible to people with disabilities.
- U.S. Department of Education – This agency enforces the prohibitions in discrimination in programs or activities that receive federal financial assistance.
The U.S. Department of Labor (DOL) doesn’t have direct enforcement responsibilities, but it makes available publications and technical assistance, including information for covered employers, as they must provide reasonable accommodation to qualified individuals with disabilities, unless the accommodation would create an undue hardship for the employer. Covered employers are private employers with 15 or more employees, state and local governments, employment agencies, labor organization, and labor-management committees. Undue hardship refers to whether a reasonable accommodation is overly extensive, substantial, or disruptive, or would alter the nature or operation of the business. Employers must assess on a case-by-case basis whether a reasonable accommodation provided to an applicant or employee would cause undue hardship.
The ADA was amended in 2008 and the new Americans with Disabilities Act and its Amendments Act (ADAAA) made substantial changes to clarify the definition of “disability”, thus overturning Supreme Court decisions that interpreted the original ADA in a way that made it difficult to prove that an impairment is a disability. The ADAAA expanded the definition by altering key terms in the definition and adding clarification and modifications, such as:
- Defining “disability” so that an impairment is not “transitory and minor” with an actual or expected duration of six months or less.
- Expanding the terms of “major life activities” and “substantially limits” in the original definition and including a non-exhaustive list of “major life activities”, such as caring for oneself, performing manual tasks, seeing, hearing, eating, sleeping, walking, standing, lifting, bending, speaking, breathing, learning, reading, concentrating, thinking, communicating, and working.
- Expanding the definition of “major life activities” to include “major bodily functions”, such as functions of the immune system, normal cell growth, digestive, bowel, bladder, neurological, brain, respiratory, circulatory, endocrine, and reproductive functions.
- Redefining who is regarded as having a disability by specifying that the word “disability” includes any physical or mental impairment that is episodic or in remission, if it would substantially limit a major life activity when active.
- Clarifying that an individual who satisfies only the third prong “regarded as” of the ADA definition is not entitled to a reasonable accommodation in the workplace.
- Prohibiting consideration of the phrase “mitigating measures” when assessing whether an impairment substantially limits a person’s major life activities, with the exception of using ordinary eyeglasses or contact lenses.
- Providing a non-exhaustive list of mitigating measures that lessen the effects of an impairment, such as medication, prosthetics, hearing aids or implants, mobility devices, oxygen therapy equipment, assistive technology, auxiliary services, or adaptive neurological modifications.
- Adding a provision that restricts employers’ use of qualification standards, tests, or other selection criteria based on uncorrected vision standards.
Under the ADAAA, covered employers must engage in an interactive dialogue with an individual with disabilities to discuss and determine the need for reasonable accommodations and whether those accommodations would be an undue hardship for the employer. However, as employers strive to be compliant, the ADAAA also provides clarification for employers, such as:
- An employer is free to hire the applicant of his or her choosing as long as the decision is not based on disability. If two individuals apply for a position, the employer should hire the individual who is most qualified for the position.
- Having a disability does not excuse employees from performing essential job tasks or following the same conduct standards required of all employees.
- Employers may terminate employees with disabilities under three conditions: 1. The termination is unrelated to the disability; 2. The employee does not meet the requirements for the job, with or without a reasonable accommodation; or 3. Because of the employee’s disability, he or she poses a direct threat to health or safety in the workplace.
For additional information related to the Americans with Disabilities Act and Its Amendments Act (ADAAA), please contact us at www.newfocushr.com or refer to the websites listed below.
Written by: Kathi Walker, SHRM-SCP, PHR
Sr. HR Consultant
Sources of Information:
- The U.S. Department of Justice Civil Rights Division – Information and Technical Assistance on the Americans with Disabilities Act (www.ada.gov)
- The U.S. Department of Labor website (www.dol.gov)
- The Equal Employment Opportunity Commission website (www.eeoc.gov)