AMERICANS WITH DISABILITIES ACT
P.L. 101-336
Tips for Employer Compliance with the Requirements of Title I
- 1. JOB DESCRIPTIONS
- All essential job functions or tasks should be included; non-essential or occasional duties should not be included. This should be done before recruiting and interviewing because such descriptions are evidence of essential job functions and can provide a defense if hiring decisions are later challenged by an individual later deemed unqualified for the job.
- 2. JOB APPLICATION FORMS
- Review job application forms to eliminate potentially discriminatory questions about disability and medical status. Any forms containing questions seeking self-identification of individuals with disabilities for employer affirmative action efforts to redress past discrimination should be separate from application forms. If used these forms should be stored separately, not in the individuals regular personnel file to avoid the possibility or impression of misuse of the disability information.
- 3. JOB APPLICATION PROCESS
- Individuals who are involved in the application and hiring process—including receptionists, personnel directors, hiring mangers and supervisors and others who may participate in interviews—should be sensitized to good practices under the ADA. Individuals with disabilities should be welcomed. Reasonable care should be taken to assure that applicants have good access to the interview premises, such as making sure that there is a clear path to the entry door and interview rooms, and during the interview process arranging accommodations to the communications or mobility needs of any applicant who is known to have limitations in those areas.
- 4. INTERVIEWS
- Interview questions should focus on employment tasks and objectives. They should elicit the ability of any applicant to get the job done, without assuming that there is only one way to do it.
Example: For a job that requires frequent lifting of 50 pounds, ask “Can you lift 50 pounds?” NOT “Have you ever had a back problem?”
- 5. TESTING AND MEDICAL EXAMS
- Any tests or screening criteria must be job-related and consistent with business necessity. Tests should be valid for the purposes given and reasonable accommodations offered to meet the needs of individuals with limitations such as vision and mobility impairments or learning disabilities.
Employers may require medical examinations only after a conditional offer of employment has been made, provided that such exams are required of all entering employees in the job category. The examining physician should be provided with a job description or a list of essential job tasks and be asked to examine if the applicant can perform those job tasks. The results of such medical exams must be kept confidential.
- 6. HIRING DECISIONS
- Hiring decisions should be based on an individuals qualifications for the essential duties of the position. The need for reasonable accommodation is not an excuse not to hire an individual who meets those qualifications. However, it is still permissible to hire the more qualified applicant.
Example: Two individuals apply for a typing job. One is an individual with a disability who types 50 words per minute. The other individual types 75 words per minute. The employer may hire the better typist.
- 7. BENEFITS
- Workers with disabilities are entitled to employment benefits that are the same as or equal to the benefits to those provided by a particular employer for workers who have no disabilities. Such benefits may include leaves of absence, sick leave or any other leave; fringe benefits, selection and employer financial support for training, and employer sponsored activities, including social and recreational programs.
- 8. WORKING CONDITIONS
- Employment activities should be arranged in an integrated manner so that employees with disabilities are not placed in separate work areas or otherwise separated from other employees or otherwise treated less favorably based on their disability. Access to all facilities, or alternative comparable facilities, should be available to employees with disabilities.
Example: A break room on the second floor of a small business can not be reached by an employee who uses a wheelchair, but the employer has provided a small area where that employee can eat, get coffee, or chat with other co-workers during break.
Flexible work schedules or flexible use of leave time may be used to accommodate the needs of individuals with disabilities.
Example: A worker with a particular medical condition needs to take medication at specific time and rest. The employer can accommodate the workers disability-related needs by using a flexible schedule or granting medical leave as an accommodation unless such changes would pose an undue hardship to the business.
- 9. RAISES AND PROMOTIONS
- A routine process for evaluating the work of all employees according to pre-established criteria can provide objective information about the performance and capabilities of all employees, those with disabilities or those without. This information can be used in making a decision about promotions and raises. Good employment practices, such as, posting vacancies and application process that is open to all workers within an organization who meet the basic qualifications helps avoid or eliminate segregation of workers with disabilities into “dead end” jobs which offer little opportunity for advancement.
- 10. REASONABLE ACCOMMODATIONS
- The employer has a duty to make reasonable accommodation only to known disabilities of employees or applicants. Good employment practices under the ADA include a process whereby employees or applicants may request reasonable accommodations, with review of any denials of against the legal requirements.
Evaluation of a request for reasonable accommodation is a four step process, to determine what changes might be made so that a qualified worker with disabilities can perform the essential functions of a particular job:
- Identification of the barriers to equal employment opportunity by:
- job analysis (determination of essential job tasks);
- evaluation of work related abilities and limitations of the individual;
- determination of the tasks or work environment factors tat prevent the individual from effectively performing essential job tasks.
- Identification of accommodations options that would enable effective performance of the essential job tasks by the individual with disabilities.
- Assessment of the reasonableness of each accommodation option in terms of its effectiveness for the individual with disabilities and equal opportunity.
- Implementation of the reasonable accommodation which is the most effective and does not impose undue hardship on the employer. Undue hardship is measured by evaluating four factors:
- the nature and cost of the accommodation needed;
- the overall financial resources of the business or organization, the number of persons employed there, the effect of the accommodation on it operations;
- the overall financial resources of any parent company or organization with respect to total employees and total facilities; and
- the structure and type of operations OD the parent company/organization including the relationship of the particular work site to the large unit.
- Although most accommodations involve no expense to the employer, an employer may refuse to provide accommodation for a worker with disabilities if making such accommodation would constitute an undue hardship in the particular employer’s circumstance. In situations where there are two effective accommodations, an employer may choose the method that is less expensive or easier to accomplish as long as it results in equal employment opportunity for the employee or applicant with the disability. If a current work employees work performance is slipping and it appears to be disability related, an employer may initiate efforts to improve the employees performance, including making modifications. It is advisable to document all efforts to accommodate an individual’s disability and review the effectiveness of accommodations provided.
State vocational rehabilitation agencies are a good source of information about the practical methods for making reasonable accommodations to enable workers with disabilities to perform their job duties and identifying resources to provide reasonable accommodations.
Any use of these materials must acknowledge their presentation by
Nancy F. Earsey, General Counsel Legal Department
Massachusetts Rehabilitation Commission
Elmer C. Bartel, Commissioner
27-43 Wormwood St. Boston, MA (617)727-2173
